International law, explained.
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The threat below the waterline in Cambodia and Thailand’s truce
Confidence-building measures for conciliation are a first step, but the harder part is interpreting all the other messages.
International law, explained.
Getty Images
Confidence-building measures for conciliation are a first step, but the harder part is interpreting all the other messages.
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The threat below the waterline in Cambodia and Thailand’s truceThe threat below the waterline in Cambodia and Thailand’s truce
A bid to resolve Cambodia and Thailand maritime dispute is underway. After five days of talks in The Hague, the parties this week agreed to a list of confidence-building measures (Opens in new window). The Conciliation Commission, chaired by Australian diplomat Katrina Cooper (Opens in new window), asked both sides to show restraint in public statements, appoint senior envoys to each other’s capitals and join a technical working group on delimitation.
But there is ambiguity. The conciliation is proceeding under Annex V of the UN Convention on the Law of the Sea (UNCLOS) and the outcome will not bind either party (Opens in new window). A non-binding process succeeds when every actor able to wreck it chooses not to – and that list runs well beyond the two foreign ministries at the table.
After the Thai cabinet this year cancelled a 2001 memorandum (Opens in new window) covering overlapping claims, Cambodia initiated the conciliation. The Commission met in Singapore on 14–16 September, in The Hague on 14–18 October, and is due to meet again in Kuala Lumpur (Opens in new window) on 24–27 November.
Sub-threshold pressure could pose challenges to the procedure.
The opening session of the Conciliation Commission on 15 September (PCA-CPA)
The first risk is that either side attempts to change facts at sea while the conciliation process keeps arguing. On 9 and 12 February, swarms of 25 to 30 fishing boats (Opens in new window) from Cambodia entered waters off Koh Kut, prompting warning shots (Opens in new window) from a Thai warship and a statement that “This is the Thai sea”.
On 14 February a Cambodian naval unit detained a Thai boat off Koh Kong (Opens in new window), which some in the Thai government considered to be retaliation. Bangkok’s own instruments, cancelling the memorandum, keeping checkpoints shut and freezing the Joint Boundary Commission (Opens in new window), are coercion by administrative means.
Each incremental move could distract the conciliation process. Both governments should treat fishing surges, retaliatory detentions and procedural walkouts as breaches of the process, and route incidents through the local border committee rather than the press.
Another risk is the provocation at home made by the military. The Hague measures address “the Parties” referring whole governments, not just diplomatic missions. The measures commit both sides to restraint in statements that could inflame public sentiment. Thai commanders had earlier forecast a third round of fighting. In March, the army’s intelligence chief, Lt Gen Theeranan Nanthakwang, warned of a coming clash (Opens in new window) in the months after the rainy season, a window that opens about now. In June, the Second Army Area commander, Lt Gen Weerayuth Raksilp, said renewed fighting would favour “whoever is better prepared, faster, better armed (Opens in new window)”. The navy chief has declared his force “100% ready” (Opens in new window), and a retired senior commander insisted in January that a third round will happen (Opens in new window).
Cambodia’s defence ministry rejects claims (Opens in new window) it is readying for conflict. Still, when generals forecast war while their foreign minister negotiates, Cambodian planners might conclude that the military, not the diplomats, hold the veto.
Thai Prime Minister Anutin Charnvirakul should make clear that public talk of renewed fighting contradicts commitments Thailand has now accepted in The Hague – Phnom Penh should do likewise.
A non-binding process succeeds when every actor able to wreck it chooses not to – and that list runs well beyond the two foreign ministries at the table.
Military procurement also sends different signals. Within a week of the Singapore session, Thailand selected a bidder (Opens in new window) for a THB16.7 billion (A$708 million) frigate and approved another THB3.5 billion (Opens in new window) for missiles, artillery and replacement equipment, partly to supply future operations.
Thailand says the frigate replaces ageing vessels and was specified by mission, not by country. That is plausible, but where no boundary exists, new capability reads as intent. Events on land, where the border is also disputed, have an effect too. Thai commanders cite reported Cambodian tank movements (Opens in new window), claims Cambodia’s defence ministry rejected (Opens in new window), saying it has proposed (Opens in new window) that neither side threaten or use force at sea.
Confidence-building measures are welcome, but trust will be hard won. Maintaining transparency at sea, avoiding provocation and escaping the security dilemma through procurement are the practicable ways forward. The Commission can propose a boundary, but only governments, with their armed forces, fleets and media in line, can adopt an effective result.
About the author
Nory Ly
Nory Ly is a Lecturer of International Relations (Asia-Pacific Security Studies) at the Institute for International Studies and Public Policy (IISPP) and a Researcher at the Center for Southeast Asian Studies (CSEAS) of Royal University of Phnom Penh.
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