Tuesday, November 19, 2013
Preah Vihear: After the ICJ Ruling, Asean Needed More than Ever
By Edmund Sim ON 18 Nov 2013
Last week the International Court of Justice (ICJ) issued a ruling that elaborated on its 1962 judgment in the Cambodia-Thailand border dispute involving the Preah Vihear temple.
I will leave it to more learned practitioners of international border disputes and the ICJ to provide detailed legal analysis of the decision. Instead, this post focuses on the implications of the ruling for the Association of Southeast Asian Nations (Asean).
Basically, Cambodia won a partial victory. The ICJ ruled that the temple and the promontory around the temple were Cambodian territory, following from the 1962 ICJ ruling.
However, the ICJ rejected Cambodia’s argument that the 1962 ruling also covered another stretch of disputed territory, the hill off Phnom Trap such that the ICJ did not address the substance of Cambodia’s arguments.
In this, Thailand can claim some partial satisfaction from the ruling. Both sides said that they would engage in negotiations over the remaining dispute.
The ICJ ruling neatly follows the rules of judicial economy, which is helpful in the current circumstances. By not ruling on all of Cambodia’s claims, the ICJ avoided issuing a decision that would have been totally unacceptable to one side or the other. The Thais, in particular, would have been incensed had the ICJ ruled that Phnom Trap was in Cambodian territory.
As it stands, Thailand and Cambodia both have reasons to accept the ruling, at least as it pertains to Preah Vihear itself. The ICJ ruling is a tactical victory for the Hun Sen government, which has been weakened by its poor election performance but still dominates Cambodia. The Yingluck Shinawatra government has the more difficult balancing task in Thailand. It does not want to prolong the dispute with the Hun Sen government, with which it is more friendly, but it also does not want to provoke the Thai opposition into mass demonstrations which could encourage a change in government.
Thus, as ever, the course of the Preah Vihear dispute will depend on Thai domestic politics. If the Yingluck government feels that it must act more aggressively to fend off domestic critics or a more antagonistic government rises to power in Thailand, the remaining dispute regarding Phnom Trap could be a potential conflict point. However, unlike the Preah Vihear dispute, the ICJ would not provide immediate recourse; a fresh case would have to be brought, which could take years.
In this context, Asean and the Asean institutions need to be willing, and more importantly, able to intervene if and when the Cambodia-Thailand dispute flares up again. Indonesia, acting as Asean Chair, successfully intervened in 2011 by brokering a stand down. Myanmar as 2014 Asean Chair and Malaysia as 2015 Asean Chair have no vested interests in the dispute, and the Asean Secretary General Le Luong Minh is from Vietnam, which is also viewed as neutral in the dispute. Hence from a diplomatic point of view, these actors will have more credibility to act on behalf of Asean should a Cambodia-Thailand dispute arise.
The real question is whether the Asean institutions are up to the task. The Asean Treaty of Amity and Cooperation’s High Council and the dispute settlement procedures available under the Asean Charter have never been invoked.
Cambodia and Thailand may not want to subject themselves to a dispute procedure run by their Asean peers, but beefing up those tools would at least give Cambodia and Thailand the practical option of using Asean procedures, and give the Asean institutions more credibility from a structural point of view.
In this sense, more dispute resolution tools would be helpful, but only if they are seen as viable options by the parties involved. Strengthening the Asean institutions and procedures thus would help avoid further bloodshed in the Cambodia-Thailand border dispute.
This article was kindly contributed by Edmund Sim and was first published on AEC Economic Community blog on November 13th.
Posted by Jendhamuni at 8:25 AM