Monday, September 22, 2008

Finding the Border at Preah Vihear – Part 2

Bangkok Post Cartoon, July 31, 2008.

International Law's Stregths and Weaknesses Mitigating between Sovereigns.

Historical Context – The Westphalian State and International Law

If the kingdoms of Southeast Asia had once been non-territorial mandalas, it is important to understand what the European colonial powers were trying to do by demarcating territory. A dramatic paradigm shift in the concept of spatial governance had taken place in Europe in which absolute sovereignty was recognized over very specific and clearly demarcated territories.

This change is often attributed to the 1648 Peace of Westphalia in which the Dutch, French, German, and Spanish people would be recognized within their demarcated territories as independent and sovereign nation-states. This concept of sovereign nation-states would not only go on to colonize the globe into our current political world of demarcated nation-states but would necessitate the creation of legal mechanisms to govern the problematic interactions between sovereign nation-states.

If the Westphalian nation-state enjoys absolute sovereignty over its demarcated territory that sovereignty only extends to a specifically delineated point in which one sovereignty gives way to another. At these razor-sharp meetings points between states exists anarchy. It is anarchic because, unlike the demarcated nation-states that command sovereign governance, there is no global sovereign to exercise governance over the meeting point of two or more states. As a product of Westphalian organization and its inherent anarchic propensity, international law has emerged to mitigate and reign in that anarchy.

How international law has emerged and evolved in the anarchic global system has been highly decentralized and is primarily characterized by the absence of any centralized governance. This means that international law is not legislated or handed down from a higher source of governance or court but emerges between states in the form of treaties that are triggered by their mutual interest and necessity.

In the context of Preah Vihear, when colonial France and Siam were demarcating their border, they were working in their mutual interests to avoid conflict over territory and as a necessity for conforming to the demarcated world of nation-states. What then emerged was both a solidification of the nation-state paradigm and a growing legality in relations between the two states.

It should be noted that such particular legalism has its roots in Western culture and that foreign aspect can cause suspicion and resentment in non-Western states. Such suspicion then casts doubt upon the mechanisms international law such as the ICJ.

As professor Emmanuelle Jouannet has written regarding international law’s origins; “International law was born with the modern European period. The first rationalist, humanist and liberal version of international law in effect came into being between the 16th and the 18th centuries, within the natural law school in Europe, and was then imposed in imperialistic manner throughout the whole world during the 19th and the first half of the 20th centuries” (Jouannet, 2007).

Lingering resentment against the Western origins of international law should neither be surprising nor dismissed lightly. It should be remembered that when international law spread around the globe it “represented in reality the concrete translation of a territorial and colonial imperialism which entrenched, in law, discrimination between states and this the non-universality of law, even as it legitimated the imperialistic imposition of this judicial model, as well as the appropriation of land and the administration of territories” (Jouannet, 2007).

International law was essentially used as a tool of conquest. Unequal treaties, extraterritoriality, and crippling war indemnities had been used to cast legality over what was essentially the violence of territorial conquest.

Such fears of French colonial expansionism, under the guise of international law, were relayed in the 1962 ICJ judgment over Preah Vihear. Princess Phun Phitsamai Diskul, daughter of former Thai foreign minister Prince Damrong, expressed this exact apprehension regarding a meeting with colonial French officials at Preah Vihear in 1930. When queried why the Siamese delegation had not lodged an official complaint against French officials for flying the French flag at Preah Vihear, she claimed “It was generally known at the time that we [would] only give the French an excuse to seize more territory by protesting. Things had been like that since they came into the river Chao Phraya with their gunboats and their seizure of Chantaburi[1]” (International Court of Justice, 1962).

Both Cambodia and Thailand have lingering and constantly refreshed nationalist memories of how the colonial powers of France and England, or their modern-day neighbors, carved up and ‘stole’ territory under the guise of legal right. For Thais in particular, the ICJ’s 1962 ruling against them could be interpreted by some nationalists as analogous to other territorial losses such as the whole left-bank of the Mekong River that was lost to a French treaty and which, today, is the sovereign country of Laos. Ultimately, the 1962 ICJ ruling remains deeply unpopular in Thailand and has been used by nationalists to position Thailand as a victim in the conflict and help fuel anti-Cambodian sentiment.

Despite any apprehension of international law there has been a steady and relentless growth in the matrix of treaties and organizations that have been signed and created to control the anarchy between states. Regardless of its questionable origins international law has progressed to the point where it affects, practically daily, and in innumerable circumstances, all of our lives and governs all aspects of state-to-state relations. There might be prominent instances when states transgress international law, such as Thailand’s challenge to the ICJ ruling, but it is important to understand how powerful such global legality has become. Even though there are notorious incidences of states contravening global legal norms it should be remember that “during the last 400 years of its existence international law has in most instances been scrupulously observed” (Morgenthau, 1978).

Now in 2008, exactly 100 years since the controversial border demarcation that grounded Preah Vihear in Cambodia, it should not be surprising that the conflict over the temple is not only fought through the mechanisms of international law but shaped within the complex medium of international law. The old mandala structure of political organization has been replaced by the global system of demarcated states and the old system of ritual tribute between kingdoms has been replaced by international law. Now, that razor sharp meeting point of anarchy between Westphalian nation-states is being mitigated by the mechanisms of international law.

[1] Chantaburi is a Thai province that borders Cambodia and was occupied by French troops for two years.

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