PAD Thugs with Gun

).

I used to make a point to argue and correct this language use when friends and colleagues would mistakenly call a protest a mob. Especially so if they were reporters.

And there is good reason. A protest is a legitimate function of democracy while a mob is a crazed group of thugs bent on violence and destruction.

But when it is time to talk about the thoroughly anti-democratic People's Alliance for Democracy (PAD), they are nothing short of an ugly mob of thugs bent on violence and destruction.

A mob is a mob, nothing more and everything less than democracy.

Lèse majesté and Harry Nicolaides

*all photos copyright*
Rama 5 (King Chulalonkorn) statue worship near Government House.

Over at the New Mandala there is an important discussion about Thailand's draconion lèse majesté laws.

The article, written byAndrew Walker and Nicholas Farrelly, is well written, articulate and I post it here because of how important this issue is in Thai society.

The whole article can be read bellow or at New Mandala here.

In Thailand the legal system seeks to ensure that public comment about the monarchy can only be favourable. Under the lèse majesté provision of the criminal code, any action that insults or disrespects the royal family can bring a sentence of up to 15-years behind bars.

The most recent victim of this law is Melbourne man Harry Nicolaides, who has worked in Thailand as a university lecturer and freelance writer. He was arrested at Bangkok airport on 31 August 2008. As Nicolaides continues to languish in a Bangkok prison cell, the use and abuse of the lèse majesté law has received a modicum of worldwide scrutiny. However since 21 September, Nicolaides’ case has been completely out of the news.

He has been quietly forgotten.

Lèse majesté is a weapon used to defend the perceived honour of Thailand’s royal family. According to Paul Handley, the author of an unauthorised 2006 biography of the king, “[i]n Thailand, all that truly stands between royal virtue and London-tabloid-style media treatment is the lèse majesté statute.”

Since Handley’s controversial book–which is banned in Thailand–there have been a number of high-profile cases of lèse majesté involving foreigners. The two most recent instances where accusations have been levelled at non-Thais are illustrative of the problems with implementing this law.

In December 2006 Oliver Jufer was charged with the offence after defacing images of the king in Chiang Mai during a drunken spree. He was held for four months without bail, and after a quick trial was sentenced to ten years in prison. Jufer served another few weeks before he was pardoned by the king and deported to his native Switzerland.

At the time, outrage about his draconian treatment for an act of immature vandalism led to even more outlandish attacks on the Thai monarchy. There was a flurry of provocative and childish online protests that used the global reach of the YouTube video-sharing website to mock the Thai royals. In response, the Thai government banned YouTube. This sparked further international bemusement and condemnation. To conform to local expectations of fair comment, YouTube is today only available in Thailand in filtered form.

Since the Jufer fiasco, in April 2008 the BBC’s Bangkok correspondent Jonathan Head has been embroiled in a lèse majesté fight of his own. He has not been charged but is the subject of ongoing investigations. Head’s case is related to that of Jakrapob Penkair, an outspoken critic of military intervention in Thai politics and an eloquent ally of deposed former Prime Minister Thaksin Shinawatra. Comments made to the Foreign Correspondents’ Club of Thailand during 2007 landed both men in trouble.

When only Thais are involved, lèse majesté does not get as much attention. But one case that has entranced the international press involved student activist and social critic, Chotisak Onsoong. Earlier this year he was charged with lèse majesté after refusing to stand during the playing of the king’s anthem at a Bangkok cinema. Almost unique among recent lèse majesté cases, Chotisak welcomed the charge with further acts of public defiance.

The view of the king himself on lèse majesté is not completely clear. In his 2005 birthday speech he cautioned against the over-exuberant use of this criminal provision. Nonetheless many factions within the Thai elite continue to indulge in episodes of lèse majesté accusation and counter-accusation to score political points.

The king’s formidable media management apparatus is apparently comfortable with this situation. While he may have some personal reservations, the king has yet to make any explicit recommendation that lèse majesté be abolished. Perhaps it remains too useful as a tool for stifling open public debate about the role of the royal family in national political and economic life. Lèse majesté helps guarantee an unrelenting public diet of positive royal news.

In Thailand, it is even hard to report the details of a lèse majesté charge without fear of sanction. Detailed reporting runs the risk of repeating the offence. Self-censorship reigns. So Harry Nicolaides will be unlikely to ever see substantial details about his case published in the Thai media.

Hopefully foreign journalists will exercise their greater freedom to report on his predicament. Some, including the BBC’s Jonathan Head, The Age’s Peter Gregory, Reuters, the Associated Press and Reporters Without Borders have already made important contributions. But for the past two weeks there has been silence.

All reports suggest that the charge relates to a passage in an obscure book published by Nicolaides that describes the rather flamboyant private life of a Thai prince. This may have been an error of judgement on Nicolaides’ part but it does not, in any way, justify his current treatment. Respect for other country’s legal systems is all very well. But this is a law that silences Thais and foreigners alike. It prevents what we would regard as perfectly normal, if somewhat prurient, reporting on royal lives. More importantly, it muzzles public discussion of a range of issues that lie at the heart of Thailand’s ongoing political crisis.

The Australian media could be doing more to highlight the plight of Nicolaides and to open up broader regional discussion on this outdated taboo.

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.

Finding the Border at Preah Vihear - Part 3

Bangkok Post Cartoon, July 31, 2008.

International Law's Strengths and Weaknesses Mitigating between Sovereigns.

International Law's Strenghts

It should be understood that the original French/Siamese border demarcation was the creation of international law between two sovereign entities. Because there is no global sovereign to impose laws upon states, such border treaties are agreed between states as a matter of mutual self-interest. And despite the fact that disagreement has emerged, the struggle over Preah Vihear is still largely conducted through the mutual self-interested confines of international law. To understand the relationship between the Preah Vihear conflict and how it is being mediated by international law, the ICJ’s 1962 arbitration will be explored.

The ICJ was established in 1945 as the United Nations’ (UN) principle judicial mechanism and the court has general jurisdiction to resolve international legal disputes submitted to it on consent by states. The jurisdiction of the court is predicated upon signatory member states to the UN Charter who, under Article 93, are “ipso facto parties to the Statute of the International Court of Justice” and under Article 94, must “comply with the decisions of the International Court of Justice in any case to which it is a party”.

How the case of Preah Vihear arrived at the ICJ for adjudication was a result of Thai troops using the retreat of French colonialists around 1945 as an opportunity to assert its sovereignty over the temple. It should be noted that the temple’s location is remote to both Bangkok and Phnom Penh and there is considerable confusion as to when Thai troops or border police actually annexed the temple. This confusion can be found in the ICJ proceeding which relates a general lack of knowledge whether Thai troops occupied the temple in 1940, 1949, or 1954. This point should not be particularly surprising though. After the French demarcation and besides the previously mentioned diplomatic meeting between French colonial officers and the Thai Prince Damrong, both Thailand and Cambodia neglected to demonstrate any rituals of sovereignty over the temple and it was large abandoned by officials in what has been described as a ‘do-nothing sovereignty’ by both nations.

Yet once Thai troops began occupying the contested temple, the chaotic space between demarcated states had been exposed and revealed two contesting sovereign powers vying for control over the same space. With no higher law or global sovereign to exercise authority, the potential for violent conflict over contested territory is very real. This scenario is, indeed, a primary rational spawning international law. With two entities endowed with supreme authority within their own territories there is a need to ensure peace, or at least mitigate conflict, between the contesting sovereigns.

With the potential of armed conflict looming over ownership of Preah Vihear, both Cambodia and Thailand voluntarily submitted the conflict to the ICJ for arbitration. That both states consented to arbitration by the ICJ can be understood as a way of states cooperating and trying to create international law between the two countries. This mutual consent is essential because no international court can take jurisdiction over international disputes without the consent of the states concerned and is a reflection of the nature of the international system in which the ultimate sources of law in which a state will submit to are their own.

Such consensual submission of cases to the ICJ is also a reflection upon the courts specific type approach to finding sources of international law. In the Statute of the International Court of Justice, Article 38, sources of law are found in ‘international conventions’ and ‘international custom’ as well as ‘principles of law recognized by civilized nations’ and the ‘teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law’. This means that along with determining the law through searching established norms, the ICJ is not necessarily a law creating intuition, such as the common law determining Anglo-American courts, but a law finding court.

Such an emphasis upon finding sources of law rather than creating law can be found in the Preah Vihear case. Issues that were emphasized in the proceedings were the original border demarcation map, called Annex I, the customs of statehood such as formal meetings between representatives of both Thailand and Cambodia, and the advice of experts on demarcation. These topics can clearly be understood as analogous to subjects in Article 38. The map is analogous to ‘international conventions’, the meetings between governmental representatives parallels ‘international custom’ and the experts on border demarcation are the ‘qualified publicists’.

In regards to the value of mapping as an international convention between states, the ICJ understood the French produced map as an implied conventional agreement between Siam and France. This was because once the border was demarcated, the French order 1000 maps to be made in which they issued 50 for the Siamese government. During the intervening period before the ICJ hearing, Thailand appeared to acquiesce to the map’s accuracy and did not lodge a complaint over the fact that Preah Vihear was drawn inside the French Indochine. This has become a point of contention in the legal struggle over the temple because Thailand’s silence was interpreted by the court as concurrence with the French-drawn border and specifically as a tacit agreement with the international convention of an agreed border.

The ICJ also placed value upon interpreting the law in the international customs between governmental officials. The most significant event was a meeting between Prince Damrong, formerly the Thai Minister of the Interior, and French officials. When the Prince arrived at Preah Vihear, he was officially received by the French Resident Superior with French flag hoisted which the ICJ understood as a standard international custom between sovereign states. A clearer demonstration of ownership by the French can scarcely be imagined. It demanded action and yet Thailand did nothing. Like the Annex I map, without protest it was interpreted by the ICJ that Thailand was demonstrating tacit approval of Preah Vihear belonging in Cambodia.

The final factor, the ‘qualified publicists’ or experts, were drawn upon to interpret the technical points of the border’s actual demarcation. This reliance was articulated by one of the twelve judges, Mareno Quintana, who wrote “A layman in the matters with which the opinion of the experts was concerned as a judge generally is, he has to draw a legal conclusion from a piece of technical work which seems to carry conviction” (International Court of Justice, 1962). And such publicists, in the form of cartographers, gave testimony on the merits and accuracy of the map’s delineation. Specific issue was taken determining, with the expert’s opinions, the watershed lines and stream beds that would be used a demarcation points. And through one academic’s interpretation, such was the reliance of the court upon expert’s opinions, that the actual topographic realities surrounding Preah Vihear were convincingly misinterpreted by a cartographic expert representing Cambodia to such an extent that region’s streams and rivers reversed their course to favor a watershed line that would place the temple within Cambodian territory.

By the end of the ICJ proceedings, “The Court, by nine votes to three, finds that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia” (International Court of Justice, 1962). Through the use of conventions, customs, and experts, the ICJ interpreted international law and created what has been the most important international law concerning ownership of the temple. And although the decision remains unpopular in Thailand, and which there are various complaints over the finer points of the proceedings, the precedent has been set and Thailand has bitterly acknowledged the ruling.

Although international law may have shortcomings that will be address in the next section, the very fact that the Preah Vihear issues is a border scuffle betrays just how deeply engrained international law is. That geo-political borders are the embodiment of, and rational for, the spawning of evermore detailed and practiced international laws to mitigate conflict in the chaos between sovereign demarcated entities is almost forgotten in the haze of the law’s normality normality. The politicized globe has carved imaginative nation-states across the earth and the world of delineated states has been naturalized as though each political demarcation was an actual, incontestable, geographic reality. Preah Vihear’s ownership is not simply being fought utilizing the mechanisms of international law but is being fought because of, and through, the paradigm of approximately 400 years of legal practice and precedent. Essentially, international law has become so deeply ingrained and normalized that its basic tenets, the borders and treaties, are virtually assumed to be natural and incontestable.

Dangerous Racist Nationalism

*all images copyright*
Rama 5 statue near Government House

Nationalism is a poison.

It might not have always been so as nations across Southeast Asia fought off the yoke of colonial oppression by harnessing the power of nationalism.

But it is a poison now that has reached such critical mass in Thailand that issues like the border conflict over Phra Vihear with Cambodia and the festering southern insurgency are perpetuated by Thai nationalism.

Essentially, close minded nationalists have prevented rational discourse on what Thailand is and who it represents to such an extent that the ability of the country to deal with conflict - like Phreah Vihear and the southern Insurgency - in a rational way is severely challenged.

So it is refreshing to see some people speaking out against the vile nationalist non-sense that Thai students are force-fed at their schools.

From the Bangkok Post:

What makes us proud of our country? At the Education Ministry, our patriotism is judged by how much we can memorise national history in textbooks as sacred fact written in stone.

That is why they are extremely worried about the future of patriotism here.

Despite the emphasis on rote learning to enforce conformity and to kill a questioning mind, the education authorities believe our children still cannot parrot well enough.

The future is bleak when many students still do not know about Pantai Norasingh, a popular folk hero who symbolises loyalty to the monarchy. Worse, the educators lament, many still do not know about King Naresuan who freed the Thais from Burmese rule.

The protracted save-the-country theatre at Government House does not convince these bigwigs that there is no shortage of ultra-nationalism here.

The spiralling southern violence cannot make them see that the crux of the problem lies in their version of nationalism, which states that only the dominant Buddhist Thais own the country. Nor can they see that if they insist on pushing this down the throats of the ethnic Malay Muslims, peace will remain out of reach.

Hence their plan to make children across the country parrot more of what they define as national history, what they equate as patriotism, which boils down to a dangerous racist nationalism in a conflict-ridden society where respect for cultural plurality remains indispensible for peace.

When I told my 12-year-old daughter of the Education Ministry's plans for her history classes next year, she screamed at the idea.

"Why do they want to put us through more boring hours? Why do they think we will love the country by remembering about battles, blood and death? Why is history so full of killing and scary events? What is the point of making us remember so many difficult names and dates? I just don't see any use of it."

Playing devil's advocate, I said we need to know about historical roots to know who we are so we can move forward confidently. The boredom may stem from how history classes are conducted, I suggested.

She defended her teacher vehemently. "We're allowed to do open-book quiz in class, which is fun. But the materials are boring."

"So what do you want to learn?" I pressed.

Civilisations, she said. Old civilisations in all parts of the world. How the pyramids were built, for example. When I pointed out that pyramids are not Thai, she just shrugged her shoulders.

When I asked if she wanted to learn how different geographical landscapes shaped different cultures and civilisations, how an ancient civilisation based on the salt industry in the Isan Plateau rose and fell, how it was replaced by principalities in the river basins which prospered from rain-fed rice cultivation, how different ethnicities in the region lived alongside one another since prehistoric times in this region and, closer to home, how true it was that Bangkok's roots were essentially Chinese - she cut me short.

"Anything, mummy. Anything is better than what it is now."

However boring, ultra-nationalism has still succeeded in seeping in to poison kids' minds. My daughter, for one, truly believes that Thailand once owned parts of our neighbouring countries, making us the greatest in this region.

"Because the textbooks say so."

Like most Thais, she feels Burma is fierce and heartless, Cambodia cannot be trusted and Laos is inferior to Thailand - because the history textbooks teach her so. And since national history only has room for ethnic Buddhists, she considers it an alien notion that other ethnic minorities must have equal rights to the dominant ethnic Thais in a democratic society.

She is only 12, I told myself. If others can rise above such ugly nationalism to understand how it makes us cruel and heartless, my girl can do it too, one day.

The Education Ministry may want to tighten the chains of racist nationalism, but any mother who cares for her children's humanity and peace in an increasingly tense multi-cultural world, will never give up the fight for it.

Neither will I.

"Dangerous Racist Nationalism" how apt.

"Calming the Political Turmoil"

* All Images *

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

*All images copyright*

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"

*All Photos Copyright *
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