Preah Vihear Temple and the Thai's Misunderstanding of the
World Court Judgment of 15 June 1962
By Bora Touch, Esq.
(Australia - 29 June
2008)
There are worrying
signs of tension between Cambodia and Thailand over Preah
Vihear temple. This could escalate into war. It is a hot
issue in Thai politics and the dispute has arisen from
misunderstanding of the International Court of Justice
Judgment of June 1962 on the part of Thai successive
governments, politicians, Thai academics with except of a
few such as Dr. Charnvit Kasetsiri. The tensions have been
exacerbated by incorrect and fraudulent statements made by
Thai partisans.
A fraudulent statement
was recently made by Thai Democrat MP Sirichok Sopha "The
ICJ ruled only the temple was under Cambodia's sovereignty
and Thailand obligated to hand the ruin temple to Cambodia,
not soil under and surrounding the ruin": The Nation,
25 June 2008. This has been the Thai theme since July 1962.
The Thai Foreign Affairs Statement of 25 March 2008
reinforces this theme.
More recently, a Thai
Columnist Nophakhun Limsamarnphunnop writes "the issue of
the surrounding areas, currently in Thailand's territory,
would be complicated and the integrity of Preah Vihear
complex would be compromised, given that a number of
elements of the temple such as a giant reservoir and the
Naga staircase are situated in Thai territory.": The
Nation 28 June 2008.
I wish to raise
two issues I hope will eradicate any misunderstanding among
the Thais; There is nothing I can do with those who persist
in knowingly making false statements:
1. Did the
International Court of Justice ("ICJ") accept or rule
as binding all Cambodian-Thai boundary maps (1907-1908)
including the Annex 1 Map and the boundary line indicated
on it ?
2. What is the
size of the "disputed" land?
ISSUE #1:
Did
the International Court of Justice ("ICJ") accept or rule as
binding all Cambodian-Thai boundary maps (1907-1908)
including the Annex 1 Map and the boundary line indicated
on it ?
At
the ICJ hearing on 20 March 1962, Cambodia asked the Court
to rule on (5) Final Submissions (claims) for Cambodia:
1. "To adjudge and declare that the map of the
Dangrek sector (Annex I to the Memorial of Cambodia) was
drawn up and published in the name and on behalf of the
Mixed Delimitation Commission set up by the Treaty of 13
February 1904, that it sets forth the decisions taken by the
said Commission and that, by reason of that fact and also of
the subsequent agreements and conduct of the Parties, it
presents a treaty character;"
2. "To
adjudge and declare that the frontier line between Cambodia
and Thailand, in the disputed region in the neighborhood of
the Temple of Preah Vihear, is that which is marked on the
map of the Commission of Delimitation between Indo-China and
Siam (Annex I to the Memorial of Cambodia);"
3. "To
adjudge and declare that the Temple of Preah Vihear is
situated in territory under the sovereignty of the Kingdom
of Cambodia";
4. "To
adjudge and declare that the Kingdom of Thailand is under an
obligation to withdraw the detachments of armed forces it
has stationed, since 1954, in Cambodian territory, in the
ruins of the Temple of Preah Vihear";
5. "To adjudge and declare that the
sculptures, stelae, fragments of monuments, sandstone model
and ancient pottery which have been removed from the Temple
by the Thai authorities since 1954 are to be returned to the
Government of the Kingdom of Cambodia by the Government of
Thailand.": ICJ Reports 1962, p. 11
In its reply at the
Court hearing, (here I only repeated two of the relevant
Thailand rebuttal submissions) Thailand objected to all 5
Submissions above as follows.
-
The Annex I Map was not published in the
name or on behalf of the Mixed Commission, but was
prepared by the French section of the Mixed Commission
alone, and published only in the name of the French
section.
-
No decision of the Mixed Commission was
recorded about the boundary at Preah Vihear.
In the ICJ operative
provisions of the judgment of 15 June 1962, the Court
accepted Thai rebuttal Submissions 1 and partially 2. The
Court found/ruled that:
1. "the Temple of
Preah Vihear is situated in territory under the sovereignty
of Cambodia;"[Cambodia's Submission 3]
2. "Thailand is under an obligation to
withdraw any military or police forces, or other guards or
keepers, stationed by her at the Temple, or in its vicinity
on Cambodian territory"; [Cambodia's Submission 4]
3. "Thailand is under an obligation to
restore to Cambodia any objects of the kind specified in
Cambodia's fifth Submission which may, since the date of the
occupation of the Temple by Thailand in 1954, have been
removed from the Temple or the Temple area by the Thai
authorities.": ICJ Reports 1962, p. 36, 37. [Cambodia's
Submission 5]
Using this as a reason, following the ICJ
ruling in July 1962, the Thai Cabinet dispatched a proces
verbale to the United Nations in which, in essence, Thailand
formally accepted the Court ruling and provided its
"understanding" of the Court ruling and that is that,
according to Thailand, the ICJ found that the Temple is
located in Cambodian territory, but the Court rejected the
Annex 1 Map and the border line indicated on it. Thailand
unilaterally drew the new boundary line as it understood:
(see Map "3", Courtesy Aide Memoire of the Royal
Government of Cambodia 1961.)
That is an incorrect
understanding of the ICJ judgment by the Thais and the facts
are as follows:
In Cambodia's
Submission 1 (and 2) Cambodia asked the Court to accept its
very precisely wording contention/claim that Annex 1 Map was
published on the authority of the Mixed
Commission for Delimitation. The Court found that the Mixed
Commission did not order or approve that the Maps be made.
Because of the lack of necessary technical facilities,
Siamese Government asked the French Government to make the
boundary Maps, including the Map in question. Four French
officials three of whom were members of the first Mixed
Commission established under the 1904 Treaty, were appointed
to prepare the Maps. The Court held that:
"What
is certain is that the map must have had a basis of some
sort, and the Court thinks there can be no reasonable doubt
that it was based on the work of the surveying officers in
the Dangrek sector. Being one of the series of maps of the
frontier areas produced by French Government topographical
experts in response to a request made by the Siamese
authorities, printed and published by a Paris firm of
repute, all of which was clear from the map itself, it was
thus invested with an official standing; it had its own
inherent technical authority; and its provenance was open
and obvious. The Court must nevertheless conclude that, in
its inception, and at the moment of its production, it had
no binding character" :
ICJ Report 1962, 21
But the lack of the
Commission's authority to publish the Map was not important
and it was not the relevant question. The Court held that:
.":
ICJ Report 1962, 22. (emphasis added).
The Court found that
this was exactly what Thailand (and Cambodia) had done; for
instance, as the Court pointed out, the following facts
supported that Thailand adopted the Maps: ;
- Siam's official wide
circulation of the Map,
- Siam asked France for more Map
copies,
- The silence of the Siamese
members of the Mixed Commission, who saw the map
-
The silence of the then governor Khukhan province (now Si Saket), who saw the Map.
The Parties thus
accepted the map and the line on it. The Court held ";the
acceptance of the Annex I map by the parties caused the map
to enter the treaty settlement [1904] and to become an
integral part of it [the 1904 Treaty]" . This process,
according to the Court, did not involve a departure from, or
violation of, the Treaty of 1904 because even if the map
line diverged from the watershed line, the Map was
nonetheless accepted by the parties.
The Court held,
finally that "
the indication of the line of the
watershed in Article 1 of the 1904 Treaty was itself no more
than an obvious and convenient way of describing a frontier
line objectively, though in the general terms. There is,
however, no reason to think that the Parties attached any
special importance to the line of the watershed as such, as
compared with the overriding importance, in the interests of
finality, of adhering to the map line as eventually
delimited and as accepted by them. The Court, therefore,
feels bound, as a matter of treaty interpretation, to
pronounce in favor of the line as mapped in the disputed
area
Further clarity of the
issue (boundary line on the Map) is seen in the Separate
Declaration of 2 majority member Judges, Judge Tanaka and
Judge Morelli which states "The claim as it is formulated
in Cambodia's Application is directed not to the return of
the Temple as such, but rather to sovereignty over the
portion of territory in which the Temple is situated":
ICJ Reports 1962, p 38.
It is beyond dispute.
The Annex 1 Map (and the boundary line indicated on it) was
ruled by the Court as valid and binding. (ICJ Annex 1 Map,
attached marked "4": ICJ Reports 1962)
Both Thailand and
Cambodia had accepted the Annex 1 Map and were to accept it.
Case
closed!
ISSUE #2:
The size of the "disputed"
land
The attached Maps "A"
and Map "B" shows the lines of Annex 1 Map and Thai line.
The "disputed" land where the temple is situated is more
than 4.6 square kilometres larger than the Thailand has
claimed:(see Thai internal working map attached "A", the
blue writings are my additions)
From the cliff or the
Temple's main sanctuary to the stone staircase (the main
reservoir) is about 650m: (see Preah Vihear Temple Plan
attached, courtesy Korat Magazine 2007)..
Map marked Map "B" is
an internal Thai working paper. A square on the Map, as
correctly pointed by the Thai official, represents 2 square
kilometres (2 tarang kilometr, red handwriting on
top, right hand side of Map "B") on the Map. If you look at
the square which covers temple, you will see that from the
temple's stone staircase and the grand reservoir to the
boundary line shows at least 2.6 km. (Note: the writings on
the French map (1:200,000 scale) in blue and pink are my
additions))
(Preah Vihear Map 3 Aide
Memo 1961)
(Preah
Vihear A Disputed Area))
(Preah Vihear Disputed B)
(Preah Vihear Plan 650 metres)
Thus the road (the
road head) built by Thailand and the Thai Police checkpoint
at the road head are therefore at least 2.6 km inside
Cambodia.
|