Sunday, May 15, 2011

The Khmer-Thai border: The Cambodian Point of View

AKP Phnom Penh, May 8, 2011

1. Why Cambodia does not trust the Thai side ? Thailand doesn’t respect her own signature :
a) in 1946, Thailand signed with France an agreement reestablishing, after World War II, previous conventions and treaties (1920, 1925 and 1937). All of these instruments stipulate that the two countries confirmed the established border line according to the maps that have been adopted by both governments as the settlement of the 1904 convention and the 1907 treaty. It was written by a Conciliatory Franco-Siam Commission that there was no need to change the provisions of the 1907 treaty about the border. But three years later, in 1949, Thai officials were occupying the Preah Vihear temple.

When, today, Thailand is stating that “the border has never been demarcated”, it is denying her own signature on the minutes of the Commissions of Delimitation and on the 1920 revision.

b) in 1991, at the time of the signing of the Paris Peace Agreements on Cambodia, Thailand was among the signatories parties that pledged to protect the sovereignty and the territorial integrity of Cambodia. But during the UN operation that followed this Agreement, it was seen by UN observers that the Thai armed forces moved border stones inside Cambodian territory (UNTAC Border units final report, September 1993).

c) in 2000, on 14 June, Thailand and Cambodia signed a Memorandum of Understanding which says that the demarcation of the border line between the two countries shall be jointly conducted in accordance with the 1904 Convention, the 1907 treaty and its annexed Protocol and ““ the Maps which are the results of demarcation works of the Commissions of Delimitation of the Boundary between Indo-China and Siam set up under the Convention of 1904 and the Treaty of 1907 between France and Siam, and other documents relating to the application of the Convention of 1904 and the Treaty of 1907 between France and Siam.”
After the approval of the works by the Commissions of Delimitation, maps (1/200.000e scale) have been printed by both the French Republic and the Kingdom of Siam. Both maps provide the same drawing of the international border line (Note of the French Embassy in Bangkok, 9 May 1949 – ICJ, Case concerning the Temple of Preah Vihear, Annexes, p. 104-105).
But, since then, recently, Thailand published a unilateral map that changes the international border in the vicinity of Preah Vihear temple and released a map that put Ta Moan and Ta Krabei temples in Thai territory.

To change unilaterally an international border line is a clear violation of the UN Charter and a brutal rupture of the Treaty of Amity and Cooperation between ASEAN Member States .
d) in November 2008 and in February and April 2009 there were meetings of the Joint Boundary Commission (JBC). The minutes of the three meetings have been approved in principle by the Thai Cabinet. But the ratification by the Thai appropriate institution remains unclear due to constitutional uncertainties and that makes difficult for the JBC to continue its work. When Thailand asks for the “resumption of the meetings of the JBC”, one must ask why Thailand is failing to ratify the minutes of the previous meetings.

“Pacta sun servanda” (Latin for “agreement must be kept”) is an international legal principle. It means that States are legally bind by the treaties, conventions, memorandum of understanding they sign. Thailand failed and still is failing to respect this principle which is at the core of international law as it is confirmed by article 26 of the Vienna Convention on the Law of Treaties.

How can one trust a country that systematically fails to comply with the bilateral and international instruments it signs ? How is it possible to trust a Prime Minister who declares that Memorandum of Understanding” (a diplomatic instrument that falls under the broad category of treaty), are “only pieces of paper without biding obligations” (Abhisit, 7 August 2010)

2. Why a bilateral process doesn’t work ?

Thai officials use to say that “the dispute could be settled in bilateral level”. If it was so easy, why it’s so hard to find a settlement ? Nothing came through bilateral negotiations. It was already like that between July 1954 (when Thai troops occupied the Preah Vihear Temple) until September 1959 (when Cambodia brought the case to the ICJ) : 5 years of bilateral negotiations with Thailand failed to reach a solution based on previous bilateral conventions and treaties.

Today, the main reasons are :

a) the legal insecurity created by Thailand which refuses to be bind by bilateral conventions and treaties signed previously.

b) the refusal by the Thai side to ratify previous agreements reached between November 2008 and April 2009 within the framework of the Joint Boundary Commission.

c) the delay or the refusal by the Thai side to attend scheduled meetings, even after the beginning of the Indonesian mediation that enjoys the support of the UN Security Council.

d) the lack of any improvement after many bilateral meetings about what is the legal origin of the crisis : the Thai refusal to recognize that the 1962 ICJ Judgement was based on a map that gives a clear delimitation between the two countries. The Court, therefore, feels bound, as a matter of treaty interpretation, to pronounce in favour of the line as mapped in the disputed area.(Judgement p. 33). Cambodia underlines that the Court explicitly wrote that this map is part of the agreement between the two countries as it was confirmed by following bilateral conventions and treaties (Judgement p. 32).

After many bilateral meetings, it became crystal clear that the Thai interpretation is so opposed to the ICJ Judgement that it is impossible to reach an agreement. Bilateral talks failed to solve the conflict. The deadlock is deep despite the fact that the issue separates two members of the ASEAN community.

Facing such situation there are two options : the use of the violence or the appeal to international diplomacy and to international justice. As it was stated by Prime Minister Abhisit on Saturday 7 August 2010 (“We will use both diplomatic and military means”), as a matter of fact, Thailand made the first one. The second one is the primary option of Cambodia.

There is a need for an international mediation to stop Thai military activities and the need for an interpretation by the ICJ of its 1962 Judgement that will impose the same understanding of this Judgement to both parties.

3. Which interest could have Cambodia by fueling a conflict with Thailand ?

Cambodia has not the slightest interest in a conflict with Thailand. Cambodia is protected from the Thai side by an international border recognized according international law since more than one century. Cambodia doesn’t want nothing else than the respect of this international border that was designed by maps agreed by both sides since 1908.

Cambodia asks for the full respect of the 1991 Paris “Agreement concerning the sovereignty, independence, territorial integrity and inviolability, neutrality and national unity of Cambodia” by all the signatories parties and in particular by Thailand.

Cambodia never started fightings nor in 2008, neither in 2011. The order given by civil authorities to the Royal Cambodian Armed Forces is to protect the territory designed by the 1908 map. Not more, not less. For that reason, Cambodia is fully committed to welcome, without any condition, the deployment of Indonesian observers along the border and in particular along sites where violent clashes occurred.

The Prime Minister of Cambodia doesn’t want to use nationalist feelings in politics. It’s not his political culture. He enjoys a huge and stable majority in the Parliament. In the mid-term of his mandate, his concern is the development of the country, not the 2013 general election. And he is the first to know that there is no gain for Cambodia in military activities. It has an heavy human and financial cost and it decreases the Government financial means for the reduction of poverty.

4. Why Cambodia has filed an application requesting interpretation of the 1962 Judgement rendered by the International Court of Justice ?

The origin of the deadlock in the bilateral talks is a deep and contradictory interpretation of the ICJ 1962 decision.

The Thai decision to reject the map commonly agreed during more than one century makes impossible any agreement. The 1962 ICJ Judgment is based on that map. But for Thailand, the ICJ “did not in any case determine the location of the boundary between Cambodia and Thailand”.

This is a clear denunciation of the 1908 bilateral agreement on the map, of the 1920, 1925, 1937 and 1946 convention, treaty and agreement. By publishing unilateral maps that change the international border line, Thailand is denouncing the 2000 MOU between the two countries.

Through various judgements, the ICJ made clear that any unilateral denunciation of a bilateral agreement may lead to the ICJ.

There is a need that the international Justice gives a biding interpretation of its 1962 Judgment.

This application made by Cambodia to the ICJ doesn’t interfere with the Indonesian mediation whose aim is to help both parties to avoid military clashes. Facing the total failure of bilateral negotiations, Cambodia makes the political choice to prefer international legal mediation than violent methods to solve the conflict.

Raoul Marc JENNAR Adviser to the Royal Government of Cambodia 5. V. 2011

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