This 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 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 of 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.
