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Can Thailand and Cambodia cooperate after ICJ?

Deputy Prime Minister Surapong Tovichakchaikul and Defense Minister Sukumph Suwanatat have a preparation meeting with legal counsels team Alain Pellet, James Crawford and Donald McRae in a hotel in Hague.

Deputy Prime Minister Surapong Tovichakchaikul and Defense Minister Sukumph Suwanatat have a preparation meeting with legal counsels team Alain Pellet, James Crawford and Donald McRae in a hotel in Hague.

For the next four gruelling days in the International Court of Justice (ICJ) at The Hague, Thailand and Cambodia will muster all their national pride and historical imperatives to present their cases in the dispute over the Temple of Preah Vihear/Phra Viharn's surrounding area. Whatever the ICJ's decision later this year, the two countries cannot turn away from each other and their common destiny. But, can they cooperate?

First of all, the two countries cannot ignore realities on the ground, especially the closely knit people-to-people contacts across the border. Cross-border transactions have increased greatly over the past 18 months due to various pushes for further economic integration under the Asean Community in 2015 - only 995 days away. The visa-waiver and the recent agreement on a common visa, the first Asean pair to do so, have greatly promoted tourism in their respective countries.

In contrast, when it comes to the temple's area of dispute, both sides have a very clear position and determination. Cambodia has asked the ICJ to interpret the 1962 decision concerning the temple's setting, arguing it includes the 4.6 square kilometres also claimed by Thailand. After its listing as a UNESCO World Heritage Site in 2008, the area has become the bone of contention. Thailand states succinctly that the 1962 decision had nothing to do with the boundary. In the 233-page written explanation to the ICJ this week, Ambassador Virachai Plasai seeks to show Cambodia's inconsistency, including the use of doctored documents. He used the word "absurdity" several times including the tale of "Alice-in-Wonderland" to describe Cambodia's erratic behaviour. At the oral presentation, he will also request the court state clearly in the future ruling that the 1962 decision was not about the boundary.

At the working level, however, both sides recognise that this is a disputed area which needs to be worked out. In 2004, when the temple's joint development plan was first raised between the two countries, Thailand fully backed Cambodia's plan for a Unesco listing with one condition - that the demarcation line was a separate matter. The scheme collapsed later. Cambodia blamed Thailand for not honouring its pledge and the political infighting that broke out inside the country, while Thailand accused the former of using the map it had rejected.

After the end of the Cambodian conflict in 1991, tourists began to visit the temple's compound without much fanfare. It is an open secret that local officials from both sides of the border benefited from the influx of local and foreign tourists. Villagers living in the area criss-crossed the border, moved in and set up shops as the tourism business flourished. All this ended when the border conflict broke out in 2008 and 2011 in the disputed areas near the temple and later developed into protracted artillery exchanges.

Since the last ICJ verdict in July 2011, the provisional measures have prevented further escalation of fighting and further damage to the temple's structure. Both sides were ordered to move out their military from the disputed areas and the Cambodian troops from the temple. The ICJ also established the 17.3-square-kilometre provisional demilitarised zone, where both sides began to redeploy last year and started joint de-mining operations at the end of February.

With the new Thai government in place later in 2011 under Prime Minister Yingluck Shinawatra, the much-strained bilateral relations with Cambodia quickly improved. The obvious reason is the close relations between Yingluck's brother Thaksin and Cambodian Prime Minister Hun Sen. Since his exile in 2006, Thaksin and his followers have been using Cambodia and border areas as a haven for their political activities. During the previous government, the sanctuary was the major point of dispute, not to mention the high level of animosity between Hun Sen and former prime minister Abhisit Vejjajiva.

Even though Thai-Cambodian relations today are manageable under the current leadership, the Thai government and Pheu Thai Party have been hard at work to ensure that the ICJ ruling will not undermine the present bilateral ties carefully nurtured through Thaksin's personal intervention and the ruling party's connections. They also realise that these special relations can only go so far as national sovereignty and public opinion is involved.

The Yingluck government has deep fears about the ICJ verdict as it will impact on the perception of various Thai stakeholders, especially the public and security apparatus. Since last June, the government has spent hundreds of millions of baht on a public relations campaign reaching out to the Thai people providing information on the temple dispute. Apart from TV, radio and various publications, the campaign includes a live-broadcast, which is unprecedented in the annals of ICJ history. It will run throughout the four-day proceedings (April 15, 17, 18 and 19) with a simultaneous Thai language translation for the audience at home. This way, the government hopes, the public will be able to follow the hearing and judge for themselves. Several pressure groups made up of ultra-rightists and nationalists have already urged the Thai government to ignore the ICJ process.

In its 100-year history, the ICJ has presided over 152 cases. Concerned parties to the disputes in 112 cases complied with its suggestions without any conditions. Judging on these outcomes, the ruling on the interpretation of the 1962 decision would be based on what is going on the ground at the present time, apart from the legal affidavits and testimony from their teams of lawyers. Keeping the ceasefire at the border permanent, and further protection of the temple's structure, were the main concerns of the ICJ's provisional measures. For the next move, the ICJ will encourage both sides to collaborate on joint development projects, as envisaged by the two governments earlier and leave the disputed territory to be settled by existing bilateral mechanisms.

After all, political ties are still good between the two governments. Any deterioration of the current situation would immediately point to hypocrisy among their leadership, especially after the public hearing at The Hague. Obviously, it would reflect negatively on the Thai side as the Pheu Thai Party has repeatedly praised the close rapport between Thaksin and Hun Sen for improving bilateral ties and ending gunfire at the border. Therefore, it is imperative for the two countries to continue the present border trends.

In the final analysis, the only way forward for the two countries is to jointly develop the overlapping area and promote tourism to the temple which has "Outstanding Universal Value".

This time, a clearer ICJ ruling could be a way out.


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