A Mediator Named ASEAN: Lessons from Preah Vihear

By Sujane Kanparit, Sarakadee magazine*

Early 2011

The thunder of war weapons could be heard along the Phanom Dong Rak (Phnom Dongrek in Khmer) mountain that spans from the west to the east, at the border between the modern-day nation states of Thailand and Cambodia.

After a lengthy period of tensions that began in mid-2008, the two Association of South-east Asian Nations (ASEAN) member countries ended up resorting to violence in their dispute over an ancient stone temple and its perimeter area.

Security sources estimated that the losses from this ‘undeclared war’ for the Preah Vihear’s disputed territory amounted to a hundred in casualties and hundreds of millions of US dollars in property damage.

As the armed conflict at the Thai-Cambodian border raged, Cambodia sent its protest to the United Nations Security Council. However, the UN Security Council after kicked the ball back into the ASEAN’s court and asked it to mediate in the squabble among two of its own members.

Sporadic gunfights continued until Cambodia took the case to the World Court (International Court of Justice). In order to prevent further violence, the Court asked both sides to withdraw their troops from the disputed areas while waiting for a verdict. Shortly afterwards, in mid-2011, the situation improved after Thailand saw a change of governments – from one led by the Democrat Party to one led by the Pheu Thai Party. The latter has a better relationship with the Cambodian government of Prime Minister Hun Sen.

Technically, in accordance with the international law, the conflict between Thailand and Cambodia is not yet over. However, this bilateral dispute has led to something previously unexpected by ASEAN member countries: ASEAN agreed to act as a mediator in an attempt to resolve the conflict, a move many diplomats described as “a role that ASEAN has never taken (before)”.

It is this role that is challenging to ASEAN, which has been viewed as a ‘paper tiger’ throughout the four decades of its existence.

ASEAN and conflicts

“ASEAN is not a dispute settlement body. So we should not expect ASEAN to sit down in judgment about issues between its member countries. It is also important to remember that many of the issues between ASEAN countries are issues that are political (internal) on both sides, and there is very little ASEAN can do about it.”

-Rodolfo C Severino, ASEAN secretary-general (1998-2002)

Despite that remark by the former ASEAN secretary-general from the Philippines, history shows that ASEAN is no stranger to territorial conflicts. In truth, the association experienced first disputes between member countries as early as its establishment in 1967.

At that time, Malaysia and the Philippines were involved in a conflict over the Sabah State, in the northern part of the Borneo Island. Indonesia was not on friendly terms with Malaysia due to a border conflict. However, all the parties involved opted to “put on hold the problem” in order to allow ASEAN to be established successfully.

Some experts said that ASEAN probably was founded to prevent conflicts in the region. They pointed to the Bangkok Declaration by ASEAN’s five founding countries – Indonesia, Malaysia, the Philippines, Singapore, and Thailand – which stated that one of the seven objectives of the association’s establishment was to “promote peace and stability in the region”.

However, in the first decade of its existence, ASEAN virtually had no role in settling conflicts between member countries. No mechanism was created to systematically deal with conflicts. During the Cold War era, ASEAN was busy keeping a watchful eye on the expansion of communism. Moreover, most conflicts at that time occurred between non-member countries, such as the wars between North Vietnam and South Vietnam and later between Vietnam and Cambodia under the Khmer Rouge.

It was not until the first ASEAN Summit of 1976 that a mechanism for dealing with conflicts was created. The member countries signed the Treaty of Amity and Cooperation (TAC), which required the signatories to respect the sovereignty of fellow member countries, to avoid intervention in their internal affairs, to solve problems between them peacefully, and to renounce the threat or use of force.

The treaty has a mechanism for dealing with conflicts in the form of a High Council. This consists of representatives who are government ministers from ASEAN member countries and the disputant nations. The High Council intervenes at the request of the countries in dispute. This treaty also allows non-ASEAN countries to become signatories. At present, ASEAN’s key dialogue partners – such as the United States, China, Japan, India, Pakistan, South Korea, and New Zealand – all are treaty signatories.

However, the treaty’s dispute settlement mechanism has rarely been applied. ASEAN has generally focused its attention on meeting over security issues and economic cooperation. When there is a conflict between them, some ASEAN member countries prefer to seek the involvement of international organisations.

For example, the territorial dispute between Indonesia and Malaysia over Sipadan and Ligitan islands went to the International Court of Justice (ICJ). The court handed down its judgment in 2002, granting sovereignty over the islands to Malaysia. A conflict between Malaysia and Singapore over the islands of Pedra Branca, Middle Rocks, and South Ledge also found its way to the World Court. In 2008, the court found that sovereignty over Pedra Branca belongs to Singapore and sovereignty over Middle Rocks belongs to Malaysia. As for the remaining island,  South Ledge, both countries were told to return to the negotiating table in order to agree on the delimitation of the maritime boundary in their territorial seas.

Regarding conflicts between ASEAN countries and non-member nations, special agreements following talks on a case-by-case basis have become the norm. These include the Declaration on the Conduct of Parties in the South China Sea” that ASEAN member states signed with China in 20012.

 A MEDIATOR CALLED ASEAN

“I am still confident that both sides will eventually talk to each other….There is no need to engage any international organisation or a third country.”

-Abhisit Vejjajiva, Thailand’s prime minister (Aug. 22, 2010)

“I am now calling for an international conference on the Cambodia-Thailand border to settle this problem…. The issue is very hot. It may cause bloodshed… With the existing bilateral mechanism not working, I call on an international conference which will include ASEAN member countries, the UN Security Council, International Court of Justice, and Paris Accord’s country members to solve this dispute.”

-Hun Sen, Cambodia’s prime minister (Aug. 10, 2010)

The new round of conflict between Thailand and Cambodia broke out in mid-2008. This came after Cambodia’s application for the Preah Vihear temple to be listed as a World Heritage site was endorsed by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) earlier that year. The Thai government of Prime Minister Abhisit Vejjajiva, which came to power amid political chaos, objected to the listing in the following year (2009). It was concerned that the UNESCO listing could affect the disputed area of 4.6 square kilometres around the temple that is claimed by both countries, as well as the unfinished border demarcation.

From then on, the diplomatic and military battles between the two member countries raged on fiercely. The disputant parties violated almost all of the clauses in South-east Asia’s Treaty of Amity and Cooperation, in addition to going against ASEAN’s objective in founding the association – to solve conflicts peacefully.

From the beginning, Thailand and Cambodia exchanged protests repeatedly. When small skirmishes occurred in April 2009, their diplomatic ties worsened. In 2010, Cambodia arrested Thai nationals (members of the Yellow Shirt movement) during their inspection of a border area that is adjacent to Poipet town of Cambodia. Former Thai Prime Minister Thaksin Shinawatra was also appointed as an economic adviser to the Cambodian government. Later, both Thailand and Cambodia recalled their ambassadors, which was tantamount to downgrading bilateral relations. In early 2011, a large-scale armed clash occurred between the two countries. Cambodia took its case to the UN Security Council, indicating that it no longer held any hope of being heard within ASEAN.

The problem was a heavy blow to ASEAN’s image and credibility, at a time when it had just promulgated the ASEAN Charter and set the goal to become an ASEAN Economic Community in 2015.

Thailand and Cambodia held totally contrasting stances – the former stressing the need for bilateral talks while the latter was pushing for mediated multilateral talks.

Against this backdrop, after the UN Security Council forwarded the Preah Vihear matter to ASEAN, a new phenomenon emerged. Indonesia, which was then ASEAN chairman, decided to take the active role of mediator in the dispute.

Lee Chian Siong, director of community affairs development of the ASEAN Secretariat, described this development as “unprecedented”. He said that ASEAN had previously functioned as a “big family” and often created an atmosphere where parties at dispute were thus encouraged to settle differences among themselves. However, this time the association “must make the bickering son and daughter to come together and talk peacefully”.

This view was not different from that of Rodolfo Severino, a Filipino who served as the ASEAN secretary-general from 1998 to 2002. He said ASEAN’s move to act as mediator in a dispute among its members was “beyond expectation”. This was because “ASEAN has no mechanism to solve conflicts and it was not founded to solve problems like this,” he said.

Indonesia began its mediator role by sending Foreign Minister Marty Natalegawa to Thailand and Cambodia. It also suggested that while no resolution had been reached, Indonesian observers should be sent to the disputed area in order to allow both sides to withdraw their troops. Cambodia agreed to the proposal while Thailand did not make clear its position on it.

As a result, there was a sudden halt to the efforts to address the conflict.

Finally, Cambodia requested the World Court to interpret its 1962 ruling that “the Preah Vihear is under the sovereignty of Cambodia” so that the “exact boundary line” could be determined. On Jul.17, 2011, the Court issued an order setting a “demilitarised zone” within the 17-square-kilometre area around the ancient temple, as part of a peacekeeping effort. The Court asked ASEAN to take care of the matter until it makes the final verdict on this case.

The World Court order, however, had no immediate effect. It would take Thailand and Cambodia one full year before withdrawing their troops from the disputed area, as had been required by the Court.

Dr Sriprapha Petcharamesree, Thailand’s representative in the ASEAN Intergovernmental Commission on Human Rights (AICHR), said that although it was indeed a major step for ASEAN to deal with the Thai-Cambodia dispute, the approach it employed in a bid to solve the problem remained unsatisfactory. In explaining the impasse, she said: “The UNSC views this issue as a threat to the region’s stability, but they still regard it as a bilateral issue. Now that the issue has been referred back to ASEAN, consent from both Thailand and Cambodia will be required to solve the problem. So, as long as any of the two parties refuses to give consent, the mediator can hardly do anything.”

Sriprapha also pointed out that in this case, Thailand appeared to act like a troublemaker and, as a result, hobbled ASEAN.

Dr Sok Touch, an expert in international relations at the Royal Academy of Cambodia’s International Relations Institute, also pointed out to ASEAN’s “failure” over the issue. He expressed suspicion that the fellow ASEAN member countries’ vested interests in Thailand caused them to be reluctant to pressure Thailand. He said this was the case when Cambodia raised the matter with Singapore, as then ASEAN chair, in 2007. “Cambodia finally had to take the case to the UNSC. The matter was referred back to ASEAN, and Indonesia took the mediating role. But ASEAN could do nothing. Everything was in a standstill. There were still armed clashes at the border. Finally, we had to go to World Court.”

For Indonesia, however, the mediation effort was not fruitless. The Indonesian ambassador to Thailand, Lutfi Rauf, said his country’s approach was an attempt to create a code of conduct and dialogue as part of efforts to settle the dispute, instead of allowing a full-scale war to happen. “In the past, ASEAN always attempted to solve problems and assist member countries – whether it was about the human rights problem in Myanmar, the island dispute in the South China Sea, or even natural disasters.”

The ambassador also said that despite the limitations facing ASEAN, the conflict between Thailand and Cambodia could have gotten out of hand without ASEAN mediation. The fact that Cambodia took the case to the World Court was another mechanism to help settle the dispute. In the meantime, ASEAN had a dialogue about this matter through its existing mechanisms.

“What Indonesia can do is to call for this problem to be discussed with support from ASEAN. We, as the ASEAN chair, attempted to use the (existing) mechanisms to alleviate the situation. This is aimed at promoting peace and security in the region. However, we are well aware of the question as to what is to be done to create mutual trust in solving the problem. It is because Indonesia is also part of ASEAN,” Ambassador Rauf concluded.

VOICES OF THE ‘VICTIMS OF THE CONFLICT’

While ASEAN was dealing with the bilateral conflict and Cambodian and Thai soldiers shooting at each other, it could not be denied that the people who suffered most were those who live and make their living in the border areas.

On the Thai side, Phum Srol village in Kantharalak district of north-eastern Si Sa Ket province sustained the worst damage.

Prasit Klin-om of Phum Srol village recounted the clashes that led to substantial human casualties and property damage for the local community. “In particular, between February 4 and 7, 2011, many houses were hit by rockets and people were killed and injured. The local residents find it difficult to make a living now. We want the governments of both sides to solve this problem quickly so that there will be peace. I don’t want them to fight against each other any more. I don’t want to run for cover when the Cambodians fire their rockets again.”

Wirayuth Duangkaew, a kamnan or sub-district headman of Tambon (cluster of villages) Sao Thong Chai, which is adjacent to the disputed area, shared similar sentiments. The armed clashes brought negative impacts to the local tourism, the main source of revenue for the community, he said.

“What we can do now is work with the Border Patrol Police (which have replaced soldiers in the area following a troop pullout) in rebuilding the ties between the people across the borders. Recently, we walked across the border to a village in Preah Vihear province to donate and plant seeds and sporting equipment. We had lunch together,” related Wirayuth. “In the future, we will try to improve the atmosphere even more. Monks will be invited to perform a joint religious ceremony.”

Just a short distance away, across the Phanom Dong Rak (Phnom Dongrek) mountain into Cambodia, Chanta Chindavong, an interpreter and reporter for the Cambodian Television Network (CTN) who covered the border skirmish, told us that many people were killed and injured in Preah Vihear province during the armed clashes.

“When the clashes occurred, the Thai and Cambodian media reported that the other side fired first. So we don’t know what the truth really is. But the fact is that many people in a village of Preah Vihear province and nearby areas were killed. People saw their properties destroyed and some of them went broke. They had to start from square one. Many places were hit by artillery bullets but it was unreported,” Chanta pointed out.

Certainly, one consequence of the armed conflict was a downturn in tourism. The local residents’ money-making businesses came to a halt after what was in effect a marketplace turned into a battleground.

And if we take a deeper, more serious look into this matter, we may in fact find that it is Thai business people who sell products to the Cambodians who appear to have been hardest hit by this conflict.

PATH TO THE FUTURE IS NOT STREWN WITH ROSES

“ASEAN has its own charter now…. This indicates that from now on, we are an organisation that is based on rules and regulations. From now on, we have a mechanism to resolve conflicts between members…. The charter states that if there is a political problem or a territorial conflict, the members involved have to refer to the Treaty of Amity and Cooperation (TAC) that they signed The treaty says that all the signatories are obliged to provide whatever assistance they can to the disputing parties…. My worry is that some signatories outside ASEAN may claim their right to mediate in conflicts between ASEAN member countries. The question is whether that will be embarrassing for us.”

-Dr Surin Pitsuwan, ASEAN secretary-general (2008-2012)

July 2012

There has been less news about the Preah Vihear case than in 2011. But it is widely known that a challenge awaits ASEAN. The World Court is expected to interpret its earlier verdict on the Preah Vihear case in 2013.

When the court ruling comes out, it will in effect give advantage to one side and disadvantage to the other, and one of the parties may well find the judgment unacceptable.

How ASEAN will react then? Will ASEAN have its own unique way in dealing with this problem and its aftermath?

Charnwit Kasetsiri, a historian specialising in South-east Asian history, commented that this matter was “too difficult to find a way out”. When looking at the relevant documents, he believed that the World Court was likely to come up with a judgment that puts Thailand in a disadvantage. And, “as a result, some political groups in Thailand will provoke the nationalist sentiment once again,” he added.

If this does happen, Dr Puangthong Pawakapan, a lecturer at Chulalongkorn University’s Faculty of Political Science, who has closely followed developments about the Thai-Cambodia dispute, predicts political chaos in Thailand. The Thai government will face both the nationalist forces in the country and the pressure to comply with international law.  And certainly, there will be renewed tension at the borders between Thailand and Cambodia.

She also pointed out that the reason why ASEAN often fails to effectively tackle this kind of problem was that every member country has its own “pile of garbage” that they do not want others to meddle with. “Therefore, the non-intervention policy has become the iron-cast rule. But it is this very rule that makes ASEAN inefficient. Certainly, ASEAN is unhappy for such a conflict to emerge, but the member countries also do not want ASEAN to intervene so that no precedent could be made. ASEAN can’t do anything much despite its declared plan to build stability and peace in the region. Indonesia, which plays the role of mediator, seems to be isolated.”

Prof Puangthong then explained that a hidden problem is that most ASEAN member countries are “subdued by the domestic nationalistic forces”. Actually, ASEAN is virtually meaningless to people in those countries, she explained.

“Many Thais view ASEAN as ‘them’ when it comes to security issues, and as ‘us’ when it is about trade,” she said. ASEAN will never understand the Thais who are taught in school about how many times in history the country lost territory to foreign countries. Therefore, when it has to choose between prioritising ASEAN and protecting the national interest, the Thai government certainly will opt for the latter. There was also a strange conspiracy theory that Cambodia was colluding with certain countries in ‘buying’ the World Court.”

Dr Sriprapha opined that despite the principle of non-interference in the internal affairs of fellow member countries, ASEAN is actually able to take some action if it has the courage to do so. She gave as examples some ASEAN moves in the past involving Cambodia and Myanmar. Following a coup in Cambodia in 1997, which occurred before that country became a member of the association, ASEAN resolved to postpone Cambodia’s inclusion as a member. “Also, in the case of Burma (Myanmar), before Aung San Suu Kyi was released from house arrest, ASEAN called on the Burmese junta every year for her release. That was intervention. So, non-interference is not always an iron-clad rule for ASEAN.”

A deeper look at the mechanism for settling disputes within ASEAN shows that in addition to the Treaty of Amity and Cooperation, ASEAN in fact has many other tools for this, including the ASEAN Charter and the principle of consultation and consensus. It has clear mechanisms to help resolve conflicts, but these have never been employed.

The TAC has a mechanism called the High Council consisting of representatives from the disputing parties and the treaty signatories. The ASEAN Charter has the Rules of Procedure of the High Council of the TAC in South-east Asia, which call for representatives who are government ministers from the member countries to be appointed as council members. A non-ASEAN country that gets involved in conflict also has the right to send a representative. The country that is the ASEAN chairman heads the council. Another mechanism calls for the ASEAN chairman and the ASEAN secretary-general to mediate in conflicts. There is also the ASEAN Coordinating Committee that mediates when the countries in dispute give their consent.

“The question is what measure will be used if the disputing countries do not give their consent for this mechanism to be employed. The ASEAN Charter calls for the matter to be referred to a summit of ASEAN leaders. So it will be unknown how the conflict will be solved,” Dr Sriprapha said.

She proposed that ASEAN may have to rely on organisations outside the charter to be set up in the future, namely the ASEAN Institute of Peace and Reconciliation**. The institute will have the duty of studying and researching on conflicts, in addition to making proposals about addressing them. Interestingly, it will also have the duty of mediating in conflicts.

However, Severino, the former ASEAN secretary-general, had a different view about this matter. He said that despite the current trend, he expected ASEAN to maintain its policy of non-interference. “It is too extreme to compare ASEAN to the European Union or another regional organisation. The ASEAN Charter has some ideals that may not completely workable.” One must remember that that all ASEAN countries, except Thailand, were colonised, Severino explained. This fact has been ingrained in the psyche of ASEAN countries and has been assimilated in the policy of every member country, he added.

Lee Chian Siong, director of community affairs development at the ASEAN Secretariat, said that ASEAN normally functions with the principle of consensus. That means the association makes decisions through unanimous resolution. As a result, “it is difficult to work under this condition. In particular, when a border dispute arises, the conflicting countries often seek the best solution for themselves, and it is very difficult for a mediator to get involved.”

Lee also noted that at present, some global organisations already deal with territorial disputes. He thus questioned whether ASEAN, which was established for “development work”, should also do this job that overlaps with that of international organisations. “This (Cambodia’s action) was not the first time that an ASEAN member country took its case to the World Court. It may not be the best method. But I just want ASEAN to consider what it can do. Persuading the disputing parties to go to the negotiation table and pressuring them to minimise violence should be sufficient. The best ASEAN can do is to tell the countries in dispute to comply with the World Court’s judgement.”

Regarding this matter, Dr Sriprapha said it depends on the disputing countries whether they want to regard ASEAN as a genuinely regional organisation. “When a member country takes its case to the World Court, that means ASEAN has lost its lustre.”

Europe has learned some historical lessons from the territorial disputes between France and Germany. The region’s warring nations finally agreed to review their policies after realising that nationalistic sentiment had led to substantial destruction. They later made assurances that there would be permanent peace in Europe. Germany and France became the driving forces behind integration in Europe that led to the birth of the European Union in 1957.

ASEAN plans to become an ASEAN Economic Community, or AEC, in 2015. The economic community is one of the three pillars in creating an ASEAN Community in the near future. However, we remain unsure whether the disputing member countries will one day end up like the Europeans did – learning from lessons of the past and going for regional integration.

Until now, it is far from clear how ASEAN will deal with territorial disputes in the future.

ASEAN’s future role as a mediatormay unfold in the way envisioned by Severino. “Many people said ASEAN will be able to solve the problem better if it adopts the European Union approach,” he said. “But I don’t think ASEAN functions through joint decision-making in the same way as the European Union. ASEAN runs with independent decisions by the individual member countries. We will be able to move forward further if the member countries are more in accord.”

(*This story and accompanying photos were produced under the ‘Reporting Development in ASEAN’ series of IPS Asia-Pacific, a programme supported by the International Development Research Centre.)

(**The ASEAN Institute of Peace and Reconciliation was formally created by ASEAN leaders at their November 2012 summit in Phnom Penh, Cambodia.)

Thai References:

ASEAN Intergovernmental Commission on Human Rights. Bangkok: ASEAN Department, Ministry of Foreign Affairs, Bangkok BE2552 (2009).

Charnwit Kasetsiri, editor. Nation-states and Their Borders: Conflicts and Resolutions. Bangkok: Foundation for the Promotion of Social Sciences and Humanities Textbooks Project, BE2553 (2010).

Charnwit Kasetsiri. Khapa Chao Dai Hen Ma – Kampucha / Lae Thang Khuen Prasat Khao Phra Vihan Thang Dan Khamen Tam / Khmer Krom (Khom) [Cambodiathat I saw / The way up to the Preah Vihear from the lower Cambodia / Khmer Krom (Khom)]. SARAKADEE MAGAZINE. Volume 25 Issue 296, October BE2552 (2009).

Chetta Puanghut. Regionalism in Southeast Asia: the formation and development of ASEAN and theoretical debates. VIBHASA Volume 6 Issue 3 Number 43, 16 June-31 July BE2555 (2012).

Sujane Kanparit. Prawatsat bad phlae Thai-Kampucha: kwam muang ruang khao phra wihan (Wounded history between Thailand and Cambodia: the conflict over Preah Vihear). SARAKADEE MAGAZINE Volume 24 Issue 282, August BE2551 (2008).

English References

Association of South-east Asian Nations. Roadmap for an ASEAN Community 2009-2015.

Jakarta: ASEAN Secretariat, December 2011.

Daljit Singh and Pushpa Thambipillai. SOUTH-EAST ASIAN AFFAIRS 2012.

Singapore: Institute of South-east Asian Studies, 2012.

Rodolfo C Severino. ASEAN. Singapore: Institute of SoutheastAsian Studies, 2008.

ASEAN Secretariat. The ASEAN Charter. Jakarta: ASEAN Secretariat, December 2011.

Thanks to:

Dr Charnwit Kasetsiri, Prof Bruce M Lockhart, Johanna Son, Morragotwong Phumplab, Kang Kallyan, National University of Singapore (NUS), Institute of Southeast Asian Studies (ISEAS), and the Cambodian Television Network (CTN).