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Temple dispute and ASEAN conflict settlement
by
Bambang Hartadi Nugroho
Saturday, 12 February 2011
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.
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