Finding the Border at Preah Vihear – Part 4

Bangkok Post Cartoon, July 31, 2008.

International Law's Strengths and Weaknesses Mitigating between Sovereigns.

International Law’s Limitations at Preah Vihear

Despite the very clear examples of how international law has proved to be both a preventive force and a forum for resolution, there are very serious limitations to its ability to mitigate conflict. The fact that 8000 Khmer and Thai troops are locked into a standoff at Preah Vihear clearly demonstrates that international law is struggling to contain the nationalist fueled standoff. And such a stalemate is a reflection of one of the primary paradoxes of international law – enforcement. Enforcing international law, such as the ICJ decision that awarded Preah Vihear to Cambodia, is only enforceable by the very states that are in conflict. If Cambodia and Thailand can reach an agreement they can enforce international law. If they don’t agree, there is no international law because there is no one to enforce it upon them.

This peculiarity of compliance can be seen in a 1962 letter regarding the ICJ Preah Vihear ruling from Thanat Khoman, the Thai Minster of Foreign Affairs, to the Acting Secretary General of the United Nations. Thanat wrote that Thailand disagreed with the ruling “but stating nonetheless that, as a member of the United Nations, His Majesty’s Government will honour the obligations incumbent upon it under the said decision in fulfillment of its undertaking under Article 94 of the Charter”[1] (Thanat, 1962). This acquiescence did come with a particular caveat though which stated that Thailand had the future right “to recover the Temple of Phra Viharn by having recourse to any existing or subsequently applicable legal process”.

At first glance such statements of compliance with the ICJ ruling might seem to suggest that the controversial border demarcation was grudgingly agreed upon by Thailand. But this is not necessarily the case. Thailand might be capitulating to objective social forces that international law represents but it is not submitting to a higher authority. This is because where there is neither mutual interest nor balance of power, there is no international law and Thailand is under neither a binding agreement nor subject to legal repercussions should they decided to annex the temple with military force.

When the ICJ ruled on Preah Vihear, the court had the United Nations Charter, Cambodian and Thai agreement to have the court adjudicate, and the court’s own reputation but does not have the agencies of enforcement apart from the agencies of the national governments. This makes the ruling something of an enforcement paradox. The court can rule, and rule with the highest political authority, but requires the belligerents to enforce their own submission. There is recourse to the Security Council under Article 94 of the UN Charter, should one of the one of the conflicting parties ignore the ICJ ruling, but, in the case of Preah Vihear, such an intervention is highly unlikely. And particularly with the prevailing mood of hate and fear that Thai nationalism has been wiping up, compliance to the ICJ ruling would be a self-inflicted wound that the current Thai government would certainly be weary of.

Conclusion

What remains as a salient indicator of adherence to international law is that Thailand, with its vastly larger and technologically superior army, has not simply annexed the temple during this latest confrontation. There are certainly other mitigating factors, such as trade and tourism disruptions, that might make Cambodia and Thailand reluctant to engage in armed conflict yet international law’s calming influence and dispute mechanisms are not just working to ease the conflict but defining the very parameters of the argument. The true test though will not only be to see if armed conflict can be avoided but will be to see a lasting resolution that will prevent future conflict between the two sovereign nations.

[1] Article 94 of the UN Charter states that members of the United Nations will comply with the decision of the International Court of Justice and that if a party does not comply, the other party has recourse to the Security Council.