Leaders need to rise above legal fray to end temple row

Leaders need to rise above legal fray to end temple row

The revived hearings over the Preah Vihear temple boundary dispute before the International Court of Justice (ICJ) have concluded. Despite a formal decision from the court not expected for several months, several observations can now be made.

First, it is abundantly clear the Thai legal team, led by ambassador Virachai Plasai, performed brilliantly in all respects.

It is hard to imagine how Thailand's argument could have been presented any better or more forcefully.

Second, after listening to both sides, it is also clear this case _ both factually and legally _ is very complicated.

It will take the court innumerable hours simply to untangle and work through the multiplicity of conflicting arguments from both sides. While it is always risky to predict what a court will do, most likely there are only three possible outcomes in this case.

The first is the court will simply decide not to decide, either by dismissing the case for lack of jurisdiction or because it feels the 1962 judgement is clear and requires no further interpretation.

The Thai press and public would most likely hail this result as a great victory, claiming the court sided with Thailand. That certainly would be true to some extent, but after the initial euphoria died down it would also become clear that the wrangle over the boundary line will remain unresolved, with no negotiated end in sight.

The second possible outcome is that the court fully agrees with Thailand as to the word "vicinity" and fixes the boundary line close to the Preah Vihear temple, most likely in conformity with the Thai Council of Ministers resolution of 1962.

This would indeed be a great victory for Thailand.

Things, however, would be perceived quite differently over in Cambodia. The devastating and humiliating loss might well cause Cambodia to permanently close its border with Thailand in the Preah Vihear area.

Access to the temple would thereafter be possible only from Cambodia _ perhaps by means of an aerial tramway.

One could also imagine the erection, within the now small enclave of the temple grounds, of a raised viewing platform from which visitors to the temple could overlook the barbed wire fence into Thailand, reminiscent of the Berlin Wall where once the righteous West could peer into the evil East.

The third possible outcome is that the court rules in favour of the Annex I map line, declaring the disputed 4.6 square kilometre area belongs to Cambodia. Thailand, understandably, would be apoplectic. Thai troops could well be dispatched "to reclaim our stolen territory", and all matter of nastiness could result for decades to come between the two countries.

Thus one has to ask: Are any of the three probable outcomes satisfactory? Is this all that we have to look forward to? By contrast, consider the closing remarks to the court on Friday from Mr Virachai: "Mr President, it is Thailand's sincere wish to come to terms with the legacy of Southeast Asia's colonial past. Cambodia and Thailand share that common past, but we also share a common future.

"In this light, the proceedings may be seen as a potential for both parties to realise that vision of two Asean community brothers living together in harmony under the rule of law."

If indeed none of the three probable outcomes to the case will result in harmony, should not the leaders of both countries now rise above the current legal fray and reach a mutually beneficial agreement on the matter before the court renders its decision?

By doing so, everyone, including the court, would be spared a likely undesirable outcome. But how can this be accomplished?

In an article I wrote two years ago for the Bangkok Post ("Negotiate toward success, not stalemate", Feb 19, 2011), I suggested a joint management area "under the oversight of Unesco, into which visitors from both countries could freely enter, see the temple and its surrounding areas, and then return the same day to the country from which they came". As for the actual boundary, I mentioned that "it would make more sense to just have the lines end at the junction with the line surrounding the historical park, leaving the "real" boundary lines inside disputed."

While it would of course take some time to work out all the details, were Thailand and Cambodia to truly start considering such a scheme, it's likely that the ICJ would happily defer its ruling indefinitely.

But the court clock is now ticking and time is running out. Without a firm commitment from both sides to immediately resolve this dispute in a way that is mutually beneficial, it's hard to imagine there ever being peace again at the Preah Vihear temple.


William Roth teaches international law at Chulalongkorn University.

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