"Calming the Political Turmoil"

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PAD thug at Government House, September 2008.

The International Crisis Group (ICG) has just released its latest report on Thailand called "Calming the Political Turmoil".

Of key importance is the very real issue that the prolonged protests held by the People's Alliance for Democracy (PAD) have hobbled the government's ability to resolve other, ongoing, country-wide troubles.

The southern insurgency, border skirmishes with Cambodia, and the struggling economy are all issues that have been jettisoned by the government.

Instead of confronting and attempting to address such issues, the government has been forced to solely focus on the PAD protests.

This singular focus is allowing other issues to fester and take on a life of their own.

And of course, these issues need focused and serious attention - they can neither be ignored or neglected.

Yet the protest gridlock needs to be resolved first and the ICG suggests the following:

If Thailand is to step back from the brink of further political chaos, several actions are required:

• All parties should commit to resolving their differences through peace­­ful and democratic means.
• Senior establishment and army figures should cease sending mixed signals and make clear their support for Thailand’s elec­ted government and the rule of law.
• The PAD should respect the rule of law and cease its illegal occupation of Government House, and the nine PAD leaders for whom arrest warrants have been issued should surrender.
• Army leaders should negotiate with the PAD to end the occu­pation and remove the protesters, emphasising that the PAD’s legitimacy is undermined by its failure to respect the rule of law. The negotiations should be backed by graduated steps by the police – short of force – to end the occupation. If those techniques are exhausted but protesters remain and the negotiations stall, the police should make plans to evict them, if they are sure it can be achieved without bloodshed.
• A consultative and inclusive process should be instituted to amend the military-imposed constitution with the aim of finding a balance between giving the exe­cutive sufficient power to govern and ensuring effective checks and balances.
• The international com­munity – including Thailand’s ASEAN partners – should make clear to all parts of the Thai elite that another coup would meet with international condemnation, and that it would not continue to do business as usual with a government which came to power in such circumstances. ASEAN countries should emphasise the discredit which such a development would bring on the association at a time when Thailand holds the ASEAN chair.

To read the full report, please click here: "Calming the Political Turmoil"

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.

Finding the Border at Preah Vihear – Part 1

Bangkok Post Cartoon, July 31, 2008

International Law’s Strengths and Weaknesses Mitigating between Sovereigns

On a rocky outcropping along a contested stretch of border between Cambodia and Thailand rests a picturesque 10th century Hindu temple dedicated to the Hindu God Shiva.

Accompanying the temple are approximately 8000 Khmer and Thai soldiers who have taken up opposing positions in a growing dispute over ownership of the temple. Although much of the media coverage surrounding the demarcation spat has highlighted how domestic politics and acerbic nationalisms are pushing the dispute ever closer to armed conflict, there has been less focus on how international law has been mitigating and defining the parameters of this conflict.

To illustrate how ubiquitous international law has been in this dispute, the historical context of the creation of Westphalian nation-states in Southeast Asia and their catalyst for the creation of international law will be explored. And yet despite the matrix of legality that has shaped, defined, and restrained much of the conflict, the problematic shortcomings of international law’s inability to decisively prevent bloodshed over the temple will be shown.

Historical Context – The Temple and the Border

The problematic ownership of the Preah Vihear temple is not simply due to convoluted legal wrangling but is complicated because historical claims of geographical ownership can be found favoring both Cambodia and Thailand. This is primarily because the old kingdoms of Southeast Asia were never the demarcated territories that they are today. Only in the last 100 years, since the European colonial powers had finished carving out their territorially-defined colonial possessions, have the old and diverse kingdoms of Southeast been transformed along Western ideology to fit what is now the global standard of the modern Westphalian nation-state.

Before European arrival, governance in Southeast Asia was largely non-territorial and that political structure has often been referred to as a mandala system. Mandalas are concentric circles of power spreading out from each kingdom in which smaller mandalas – smaller kingdoms or fiefdoms – existed within the more powerful spheres of larger kingdoms. In this system there were no clearly defined borders, no singular sovereign power, and smaller centers looked outward to more powerful mandalas for protection. This paradigm of governance meant that borders did not exist and remote regions were not definitively under control of one power source.

The location of Preah Vihear, before Westphalian demarcation, was “a largely autonomous collection of tributary principalities in the Khorat marginal highlands, an area the Siamese Kings called Forest Khmer Domains [huamuang khamen padong in Thai]” (Cuasay, 1998). Along with there being no solidified borders, such tributary principalities were often paying tribute to multiple larger kingdoms of which they were never under direct administrative control.

Essentially, territorial governance was ambiguous and secondary to controlling human populations and maps of the region were more concerned with cosmology than with topographical features. And although both modern states are fighting over the temple and claiming historical ownership, neither Cambodia nor Thailand existed as they do today. So, their historical claims of ownership are largely driven by nationalistic fictions that apply modern Westphalian rules of sovereignty over remote and previously-independent peoples and lands.

Yet geographical ambiguity for the region ended with the arrival of European cartographers and specifically ended for Preah Vihear when a boundary settlement was made in 1904-1908 between France, then in control over its colonial territory of Indochine, and Siam (Thailand). In a reflection of Siam’s mandala-like thinking and subsequent lack of cartographical knowledge, the International Court of Justice (ICJ) writing of the original 1904-8 border demarcation, said “The Siamese Government, which did not dispose of adequate technical means, had requested that French officers should map the frontier region.” (International Court of Justice, 1962). Along with placing the temple inside Cambodia, the demarcation treaty was the first act of international law concerning the temple and set the first and, arguably, most important precedent in the ongoing legal battle.

Emergency Decree - Bangkok

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PAD thugs at Makawan Bridge.

At 7 am, Tuesday September 2nd Prime Minister Samak declared a state of emergency under the Emergency Decree on Public Administration in Emergency Situation.

This is the same unpopular law that is in place in the southern border provinces which grants more power to the police and military while restricting civil liberties and press freedom.

Bangkok is now grinding to a halt with schools and businesses closing.

Next is a massive strike by labor unions which threaten to cut the electricity, water, train, and some airlines.

It is hard to see the Samak government riding out this storm without either the government's complete collapse or a serious crackdown by security forces.

"Political Turmoil and the Southern Insurgency"

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Thahan Phran or ranger on guard for the arrival of former Prime Minister and Privy Councilor Surayud Chulanont at the 4th Peace Fair organised by SBPAC in Yala August 1st 2008.

The International Crisis Group has just released at report titled "Political Turmoil and the Southern Insurgency" which details how security forces have effectively lowered the level of violence in the southern border provinces.

This is despite the fact that political chaos in Bangkok has prevented the Samak government from implementing any positive changes in the South.

This initially seems like good news but the fundamental grievances that are driving this conflict have still not been properly addressed.

The military has succeeded in locking down the violence through an extensive security plan yet this should not be understood as a solution as much as temporary quick fix.

To address the long term grievances, the International Crisis Group suggests:

In particular, the government should:

• appoint a deputy prime minister to take charge of the effort to cope with southern violence, instead of allowing the military to lead on the issue;
• empower the Southern Border Provinces Administrative Centre (SBPAC) by expediting the enactment of a law to govern its operations and to make it independent from the military-controlled Internal Security Operations Command;
• revoke martial law, amend the emergency decree and the internal security act to increase accountability of the security forces, and allow detainees prompt access to lawyers and family;
• ensure accountability for past human rights abuses, such as the deaths of nearly 200 Muslims in the 2004 Tak Bai and Krue Se incidents – the single most effective way to rebuild trust with Malay Muslims;
• make clear it is ready to negotiate seriously with genuine leaders of the insurgency, but make it a condition of the negotiations that their inter­locutors demonstrate they genuinely control insurgents on the ground;
• and give serious consideration to ways of granting some degree of self-rule, or decentralisation of power, to help end the conflict.

To read their full report, please click here: Thailand: Political Turmoil and the Southern Insurgency