I. Asean's Initial Response to the Outbreak of the Conflict

On 8 July 2008, the United Nations Educational, Scientific and Cultural Organization (UNESCO) decided to inscribe the Temple of Preah Vihear as a world heritage site. Thailand objected to the listing on the ground that the land around the Temple was the subject of a sovereignty dispute between Thailand and Cambodia and any decision related to the area could not be adopted without its consent.Footnote ² As tensions ratcheted up, both sides sent troops to the area. Confrontation escalated and the two armies exchanged fire on 3 August 2008. Fighting recurred in October 2008, April 2010, and January 2010, with the most serious acts of violence taking place between 4 and 7 February 2011 and from 22 April to 3 May in 2011.Footnote ³

Coincidentally, the ASEAN Foreign Ministers had their 41st ASEAN Ministerial Meeting (AMM) just a few days after the crisis began in July 2008, and yet they did not formally address the crisis. This was despite the Association's stated mission to “promote peace and stability”Footnote ⁴ and the fact that they had only in the previous year signed the ASEAN Charter that included maintaining peace as its first purpose. The 41st AMM's Joint Communiqué included statements on North Korea, Iraq, and the Middle East, but did not even mention the Preah Vihear crisis between two of its own Member States.

In an attempt to get ASEAN to respond to the crisis, Cambodia sent a letter to Singapore, the Chair of ASEAN, in late July 2008, requesting the establishment of an ASEAN Inter-Ministerial Group “to help find a peaceful solution to the current crisis and to avoid military confrontation between two ASEAN members”.Footnote ⁵ The letter indicated that the ASEAN Inter-Ministerial Group would consist of the Foreign Ministers of Singapore, Indonesia, Vietnam, and Laos. No explanation was provided as to why these four countries were selected, although it was likely that, in accordance with ASEAN's practice, Cambodia had informally consulted with them and obtained their agreement before making the request. An informal meeting was convened on 22 July 2008, but no consensus was found regarding Cambodia's proposal. As former Indonesian Foreign Minister Hassan Wirajuda explained, “[t]he problem is that the parties [to the dispute] are not in full agreement on whether or not at this time we need to establish the contact group”.Footnote ⁶ Cambodia wanted a contact group but Thailand insisted this was an internal issue between the two countries and it would be premature to involve ASEAN.Footnote ⁷ The outcome was simply a statement by the ASEAN Chair rather than by the AMM that both parties would handle the situation peacefully and ASEAN Foreign Ministers would remain seized by the issue.Footnote ⁸

II. Asean's State of Inaction

The prospect for a more effective role of ASEAN did not get any better after Thailand assumed the rotational Chair in August 2008. Violence erupted in August and October 2008 and although there were calls for ASEAN to take a more active role, no specific action was taken as Thailand—then the ASEAN Chair—insisted that the issue was a bilateral one.Footnote ⁹ Skirmishes recurred in January 2010 shortly after Vietnam undertook the Chair, but ASEAN remained in a state of inaction. To engage ASEAN in resolving the crisis, Cambodia sent Vietnam a letter, asking for a special ASEAN Summit to defuse tension or, at least, to issue a statement on the situation and calling on other ASEAN Member States not to stand idle and leave the Association's image “at stake any further”.Footnote ¹⁰ ASEAN took no action in response.

In August 2010, Cambodia sent another letter to Vietnam, requesting Vietnam to mediate the dispute “under the ASEAN framework either as a whole or on an individual basis in line with the principles of the ASEAN Charter, Article 2(c) and (d)”.Footnote ¹¹ This was the first time a Member State invoked the ASEAN Charter to request the ASEAN Chair to intervene. Article 32 of the ASEAN Charter provides that the ASEAN Chair shall ensure an effective and timely response to any crisis situations that affect ASEAN. Article 23 of the Charter also states that Member States may request the ASEAN Chair or the ASEAN Secretary-General to provide good offices, mediation, and conciliation. Cambodia's decision to ask only the ASEAN Chair was not surprising, given that the then ASEAN Secretary-General Surin Pitsuwan was a Thai national. When Thailand declined and continued to insist on a bilateral process, it was enough for Vietnam to take no further action.Footnote ¹²

It should be noted that ASEAN concluded the Protocol to the ASEAN Charter on Dispute Settlement Mechanisms in 2010 (the 2010 Protocol), emphasizing the desire to transform ASEAN into a “rules-based organisation with practical, efficient and credible mechanisms in place to resolve disputes in an effective and timely manner”.Footnote ¹³ Yet, more than two years after the Preah Vihear conflict began, ASEAN was still unable to manage the situation or even to respond to Cambodia's initiatives. The Joint Communiqués of the 42nd AMM in 2009 and the 43rd AMM in 2010 both failed to even recognize the existence of a crisis that was threatening regional peace and stability. By early 2011, when the violence got worse, ASEAN's credibility was seriously at stake; only at that point did the Chair pass to Indonesia and ASEAN started to act. After Vietnam's rotational Chair, Brunei had been expected to take the helm in 2011, followed by Cambodia in 2012 and Indonesia in 2013. In 2010, however, Indonesia had requested a swap with Brunei because its scheduled ASEAN Chair in 2013 would coincide with its Asia-Pacific Economic Cooperation Chair.Footnote ¹⁴ As it turned out, ASEAN was lucky to have Indonesia as the Chair at that critical point in time, as it ended the state of inaction that had lasted for more than two years.

III. Asean's Reactive Response at the Height of The Tension

In early February 2011, Thai and Cambodian troops exchanged heavy fire on the border. The increasing violence prompted Indonesia to conduct shuttle diplomacy to defuse the situation. Indonesian Foreign Minister Marty Natalegawa flew to Phnom Penh on 7 February 2011 and visited Bangkok the following day. Stressing that “[t]here is no more place for use of force”, Natalegawa called both countries to allow ASEAN to intervene and bring some form of a temporary truce and cool down hot tempers.Footnote ¹⁵

On 6 February 2011, Cambodia requested the UN Security Council to hold an urgent meeting to address the crisis and send peacekeepers to the Preah Vihear Temple.Footnote ¹⁶ Indonesia, as the ASEAN Chair, worked closely with the Security Council before and during the meeting, which was held the following week. Speaking at the Security Council, Natalegawa recognized the major disagreement between Thailand and Cambodia regarding whether to address the conflict bilaterally, and stressed the need to build a more reliable communications system with ASEAN's support.Footnote ¹⁷ After the meeting, the Security Council set a precedent by referring the issue back to ASEAN.Footnote ¹⁸

One week after the Security Council meeting, Indonesia hosted an urgent meeting of ASEAN Foreign Ministers on the crisis. The meeting was successful and another precedent was set when ASEAN agreed that Indonesia would send observers to the affected area, and they would be “observing and reporting … on complaints of violations and submitting [their] findings to each party through Indonesia, current Chair of ASEAN”.Footnote ¹⁹ The reference to “Indonesia, current Chair of ASEAN” instead of “the Chair of ASEAN” was understandable given Indonesia's credibility and that the next ASEAN chair would be Cambodia. In a series of exchange facilitated by Indonesia, Cambodia and Thailand continued to negotiate the terms of reference (TOR) for an observer mission. However, when the conflict spread in April 2011, no final agreement was reached and Cambodia decided to file an application asking the International Court of Justice (ICJ) to render provisional measures and interpret its 1962 Judgment.

The dispute was addressed at the highest level for the first time at the ASEAN Summit in May 2011. Believing that “the risk of doing nothing was greater than the risk of trying something that failed”, Indonesia's President took the unusual step of asking the Thai and Cambodian Foreign Ministers to remain in Jakarta for an extra day to directly negotiate for the TOR with Natalegawa's facilitation.Footnote ²⁰ Renewed efforts on diplomacy came to fruition, if only for a short time, when a set of TOR was agreed upon by both parties, even though Thailand later stated that it was not able to abide by it. In July 2011, the ICJ rendered its provisional measures, requesting both parties to co-operate with ASEAN and allow ASEAN observers to have access to the zone.Footnote ²¹ The ICJ's order was recognized by ASEAN leaders, who, at the ASEAN Summit in November 2011, welcomed “the increasingly encouraging conditions” in the affected area and emphasized the importance of the “engagement of the current Chair of ASEAN”.Footnote ²²

IV. Asean's Potential to Resolve the Dispute

Under Article 25 of the ASEAN Charter, ASEAN dispute settlement mechanisms are now available for all fields of ASEAN co-operation. As Cambodia and Thailand are members of ASEAN and both have ratified the Treaty of Amity and Cooperation in Southeast Asia (TAC) and the ASEAN Charter, ASEAN potentially could help resolve the dispute by applying either the TAC or the ASEAN Charter. On closer inspection, however, the institutional design of these dispute settlement mechanisms makes it unlikely that ASEAN could resolve the Preah Vihear dispute or any similar disputes that may arise in the future.

First, under the TAC, either Cambodia or Thailand could bring the dispute to the High Council, which is a body comprising Foreign Ministers of all ASEAN Member States.Footnote ²³ Before the High Council can be convened, however, its Chair would need to seek written confirmations from both Cambodia and Thailand that they agreed to use the procedure to resolve their dispute, or the High Council could not proceed.Footnote ²⁴ Since there is no timeframe specified for the parties to submit their confirmation, either party could block the process by objecting to the initiation or simply by providing no written confirmation. Even when both parties have agreed to let the High Council intervene, as a political body comprising all Member States, parties to the dispute included, it is unlikely that the High Council could produce any definitive solution on a consensus basis. Even if a consensus is reached, disputing parties are not obliged to undertake the decisions or recommendations by the High Council. In a way, its design makes the TAC dispute settlement mechanism weak, since the employment of the mechanism is premised on prior agreement, consistent approval, and voluntary compliance by all dispute parties.

Second, either party could bring the use of force as a violation of the ASEAN Charter to the dispute settlement mechanism established by the 2010 Protocol.Footnote ²⁵ Under the 2010 Protocol, once consultation does not succeed, any party may request an arbitral tribunal.Footnote ²⁶ This request, however, must be agreed to by the other party. In case the responding party does not agree, the complaining party may refer the dispute to the ASEAN Coordinating Council (ACC) for a direction on how to resolve the dispute by good offices, mediation, conciliation, or arbitration.Footnote ²⁷ Again, as a body composed of all ASEAN members, including the concerned parties, the chance is low that the ACC can make a decision on consensus. Although the parties may then refer an unresolved dispute to the ASEAN Summit,Footnote ²⁸ there is not much the Summit could do at this stage except issuing a statement calling the parties to continue to resolve their dispute by peaceful means.

V. Conclusion

It should be noted that the Preah Vihear engagement under Indonesia's chairmanship is, in all fairness, more ambitious than anything ASEAN had ever attempted in the past in terms of maintaining intra-regional security. ASEAN managed to bring the parties together. It provided an institutional platform for negotiations to resume. It added another level of encouragement and pressure on the parties to suspend hostilities, and actively helped de-escalate the tension. The meeting of ASEAN Foreign Ministers in February 2011 was historic as it laid down a framework for sending the first monitoring mission by one Member State to a disputed area between two other member countries under the ASEAN chapeau.

By actively engaging in the dispute, ASEAN indeed gained more trust from the international community. Upon deliberating on the dispute, the UN Security Council in its Statement expressed support for ASEAN's active efforts and urged the two parties to co-operate with ASEAN. The Order of the ICJ also reinforced ASEAN's role, while requesting both parties to allow ASEAN-appointed observers to have access to the provisional demilitarized zone. This was the first time that ASEAN was directly referred to by both the UN Security Council and the ICJ as a primary interlocutor in search of a dispute resolution between its two Member States.

One can argue, however, that the Association's mission is far from being accomplished. No formal ceasefire or written agreement was reached and Indonesian observers are yet to be deployed. Responding to Cambodia's request for an interpretation of its Judgment of 1962, the ICJ decided in November 2013 that Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear.Footnote ²⁹ The land outside the promontory, however, remains in dispute. Thailand had already stated its opposition to any move by Cambodia to submit a management plan for the Preah Vihear Temple to UNESCO until the two countries have determined the exact size of the area.Footnote ³⁰ The issue remains sensitive in Thai domestic politics and could be exploited politically by domestic groups. It is not unlikely that tension may resurface, prompting ASEAN's involvement again. The Cambodia-Thailand conflict, therefore, remains a formidable challenge for ASEAN.

Any claims about an effective and sustainable role for ASEAN in regional security are therefore premature. First, a dispute of a political and security nature between two members is still viewed as a bilateral affair, and ASEAN as an organization still refrains from engagement, which explains why the Joint Communiqué of the 41st AMM included statements on North Korea, Iraq, and the Middle East, but had no words on the Preah Vihear dispute. If ASEAN wants to take responsibility for regional security, it needs to alter its framing of internal or bilateral affairs, start viewing a dispute between two Member States as an issue of regional concern, and direct regional efforts at conflict prevention, not just conflict management.

Second, developments in the Cambodia-Thailand dispute demonstrate that the ASEAN Chair has an important role to play. Some Member States may respect what Indonesia did in 2011, but they may not take the same course of action if they assume the Chair. The challenge for ASEAN is how to maintain a sustainable role despite the annual rotation of its Chair. Instead of counting on having an active Chair at the right time, ASEAN should consider the creation of a high-level expert group to assist in conflict prevention and resolution.

Third, ASEAN's consensus rule essentially gives each member the power of veto, which causes most dispute settlement processes to grind to a halt if they involve important interests of a Member State. This explains many lost opportunities and why ASEAN could not accomplish anything from 2008 to 2010. While it may have worked in the past, the requirement for consensus is increasingly turning into an impediment to regional dispute settlement, especially at a time when Member States are convinced that “having credible dispute settlement mechanisms would help ASEAN prevent festering conflicts and confrontation among the Member States, preserving the cooperative atmosphere for concerted efforts towards building a peaceful and prosperous ASEAN Community”.Footnote ³¹ Consensus makes it difficult for ASEAN to become an independent and effective institution that disputants look to in a third party. Even if it is achievable, consensus often requires a lengthy process of negotiation, and thus may not help to resolve disputes in a timely manner. Meanwhile, quickly escalating disputes may undermine regional peace, and therefore cannot wait until consensus arises.

There are ways to modify the consensus rule or to add more flexibility to the rule without having to revise the ASEAN Charter. Article 20 of the ASEAN Charter states that “[n]othing shall affect the modes of decision-making as contained in the relevant ASEAN legal instruments”. This means that ASEAN may conclude a specific instrument to offer a new way of making decisions, as it has done with the 2004 Protocol on Enhanced Dispute Settlement Mechanisms for economic disputes. The negative consensus rule of the 2004 Protocol means that the ACC will automatically decide to “direct” the parties to resolve their disputes unless there is a consensus not to do so. Article 20(2) of the ASEAN Charter further provides that “[w]here consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made”. If consensus by all ten Member States proves infeasible, ASEAN could make decision by using, for instance, the consensus minus X formula. This means that ASEAN could still retain its consensus rule, but the rule is only applicable to Member States that are not party to a dispute. In other words, Cambodia and Thailand would still attend ASEAN's meetings and make their statements, but ASEAN's decision could be considered as adopted as long as the other eight members agree. Such an adjustment in ASEAN's decision-making process with regard to dispute settlement and management will hopefully increase the effectiveness of ASEAN and thereby further ASEAN's contribution to maintaining and promoting a peaceful environment for Southeast Asia.