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.