Memorandum of misunderstanding

via CAAI

The Thai government is ignoring external pressure and insisting on a bilateral solution, but the best hope for that is under fire

Published: 20/02/2011 at 12:00 AM

Newspaper section: Spectrum

The renewed fighting along the Thai-Cambodian border only hours after the United Nations Security Council (UNSC) issued a statement last Monday calling for a ceasefire was a clear challenge to the authority of the international body. The UNSC also called for the involvement of other Asean nations to help resolve the conflict. While Cambodia has all along urged intervention by a third party, Prime Minister Abhisit Vejjajiva insists that the border dispute can and must be solved through bilateral negotiations.

Of late, however, the chief instrument for a bilateral solution to the boundary dispute at the heart of the Preah Vihear temple controversy _ the 2000 Memorandum of Understanding (MoU) on the Survey and Demarcation of Land Boundary _ has been marginalised and largely ignored. This is very much to the liking of the nationalist yellow shirt People's Alliance for Democracy, which has called on Prime Minister Abhisit's's government to revoke the MoU.

The 2000 MoU provided a framework for negotiations and gave birth to the Thai-Cambodian Joint Boundary Commission (JBC), which is charged with supervising the surveying and demarcation work along disputed portions of the 798km border between the two countries.

The MoU also requires that both sides refrain from carrying out any work that might result in changes to the border environment, and stresses the need to work out any disputes via consultation and negotiation.

Importantly, the MoU addressed the commitment to work together on the demarcation with reference to old documents which previously suggested the borderlines.

These include maps drawn up by the Franco-Siamese Mixed Commission of Delimitation of the Frontiers in 1907, when Cambodia was a protectorate of France. One of these, known as the Annex I map, delineated the borderline through the Dangrek mountain range where Preah Vihear sits. This map, which had a scale of 1:200,000 and did not correspond to the natural watershed of the area, was used in the International Court of Justice (ICJ) in 1962 by Cambodia to claim sovereignty over the temple. The ICJ ruled in favour of Cambodia in the absence of any opposition from the Thai side to using the Annex I map.

Since Cambodia won approval for its listing of Preah Vihear and a disputed 4.6 square kilometre perimeter as a Unesco World Heritage Site in July 2008, the PAD has been squarely in the middle of the controversy. Thailand says the disputed area is a part of Si Sa Ket's Kantharalak district. Due to the simmering tensions that have several times led to hostilities, Cambodia has not managed to have its management plan approved by the World Heritage Committee.

PAD spokesman Parnthep Pourpongpan said "The MoU has posed a disadvantage for us because it refers to and acknowledges the 1:200,000 map and makes it legitimate." He also said that Cambodia has not fully complied with the rules agreed to under the MoU. Specifically, he said, Cambodia has undertaken developments in the disputed 4.6 square kilometre area that have changed the environment, in violation of Article 5 of the MoU.

Mr Parnthep also said Cambodia was responsible for starting the latest round of fighting, which proves it doesn't respect the the spirit of the MoU, which calls for negotiation and consultation.

Mr Parnthep said Cambodia was clearly trying to get the UNSC to recognise the MoU and the validity of the Annex I map at the meeting last Monday. This raises questions about Cambodia's motives in bringing the case to the UNSC, which has authority to refer the dispute to the ICJ for reinterpretation of its past ruling.

With the MoU intact, said Mr Parnthep, Thailand can't prevent the UNSC from getting involved, as it cannot lay clear claim to its boundaries and its domestic jurisdiction. Under the UN Charter's Article 2 (7), it is suggested that the UNSC should not intervene in matters inside a country's domestic jurisdiction.

"If we revoke the MoU, we will not be at a disadvantage," said Mr Parnthep. "Without the MoU, we can declare our borderlines following old treaties and this will prevent the UNSC from getting involved [in accordance with Article 2]. Cambodia has violated the MoU and we can abort it and return to what was agreed under old treaties."

The government has so far not paid any heed to the PAD's demands. Rather, it sticks by the MoU and the establishment of the JBC as the main channel to reach an agreement with Phnom Penh to settle the conflict.

Cambodia, meanwhile, is further distancing itself from the bilateral approach offered by the MoU. At the UNSC meeting, Cambodia not only called on the UNSC to take actions such as peace-keeping operations, it also called on the body to refer the matter to the ICJ for interpretation of the 1962 judgment.

The only thing that may be preventing the UNSC from taking such actions, said Mr Parnthep, is that the recent border clashes have not yet been viewed to be affecting "international peace and security".