Cambodia and Thailand have been sporadically
confronting each other—politically—in countless wars. The latest one started in
2008 right after Cambodia’s inclusion of Preah Vihear Temple, hereinafter
labeled PVT, into UNESCO’s world heritage list in July 2008.[1]
Though PVT was, after painstaking hearings and judgment, granted to Cambodia by
ICJ in 1962, Cambodia asked the court to interpret the judgment again after
three years in an armed conflict with Thailand.[2]
Consequently, both Cambodian and Thai troops are now in the interim ordered to
leave ‘Provisional Demilitarized Zone (PDZ),’[3]
the decision which some Cambodians, including Mr. Sam Rainsy, find
unsatisfactory or even ‘unfair.’[4]
Therefore, this blog post aims to discuss judicial features of the 1962 case so as
to determine legal concepts and principles supporting the judgment and to find
out whether the 2011 request for interpretation should have been executed, or
not.
The 1962 judgment decided on three
points, the first one of which should be emphasized here. It was that PVT was
in Cambodia’s sovereign territory.[5]
Although of all the three verdicts there was none pertaining to which map the
demarcation was based on, a huge proportion of the merits relevant grounded the
ruling. Through analyzing the merits presented, a number of legal
principles surface, rendering unambiguity of the triumph
Cambodia has gained since then.
The first ground found was the fons et origo of the sovereignty over PVT
and its locality, which had been laid in the Franco-Siamese frontier settlement
in 1904—and generically those from 1904 to 1908.[6]
Art. 1 of the treaty pointed to the watershed line in the Dang Rek as the
frontier, and Art. 3 stipulated that the delimitation shall be done by the
Mixed Commission, in which, incidentally, there were delegates and experts from
all parties. While Art. 1 would have benefited Thailand, the court saw that Art.
3 clearly had the overriding authority since the former provided no more than a
criterion but it was actually the latter that dictated the result,[7]
which was that PVT was in Cambodia.[8]
Thailand agreed on this logic[9]
and even incorporated it into its own survey in 1934-1935[10]
but still rejected in on an unacceptable ground.[11]
The question now is, “Can the
Franco-Siamese agreement creating the Mixed Commission count as a legal basis?”
Art. 38 of ICJ’s statute articulates implicitly that this sort of agreement
does count as a solid ground,[12]
and hence any genuine and uncorrupted result of the commission can too be
counted.
Were the maps submitted by Cambodia to
the court not those resulting from the work of the commission, as Thailand
claimed? The claim, too, was rejected for the facts that those maps had been
publicly used and shown as well as handed, especially, to many third parties,
such as UK, Germany, Russia, and US.[13]
Therefore, the maps—collectively known to be the Annex I map—were not frauds.
Other legal concepts encountered in the
judgment also include recognition, estoppel and acquiescence as well as
prescription, all of which supported the plaintiff.
Recognition is acceptance by a state—even
if it is implied.[14]
Thai delegates, by their conducts, implicitly in many cases recognized
everything about the Annex I map.[15]
More obviously, Thai authorities themselves did explicitly show their
acceptance,[16] but they
then claimed errors in the process leading to their recognition. For one thing,
Thai officials contributing in the work of the commission had been “minor,”[17]
and hence cannot be held accountable for the Annex I map. For another, Thai
side was not aware that PVT was, in the map, in Cambodia at the first place. The
court rejected those pleas. Evidently, Prince Davawongse, the Foreign Minister,
Prince Damrong, the Ministry of Interior, and many other Siamese commission
members were not at all minor.[18]
Also, according to the court, it was a common rule of law that a claim for
error cannot be counted when the party claiming it had contributed to the error
itself.[19]
The court figured the fact that PVT was pinpointed in the maps to be in
Cambodia could not have been missed by any party. What was more ironical was
that Thailand itself in 1937 even produced a map of its own, placing PVT in
Cambodia.[20] Therefore, Thailand’s recognition of
Cambodia’s sovereignty was eligible and undeniable for the case.
Seen through the eyes of an
international law expert, Shaw (2004) explained that a part of Cambodia’s
victory in the case owed it to Thailand’s estoppel.[21]
After the recognition, there was, inter alia, a time that a Thai prince paid an
official visit to PVT area while French flag was very visible on the temple.
The act showed that Thailand officially acknowledged French sovereignty over
PVT. As Shaw put it, “Thailand was estopped by its conduct from claiming that
it contested the frontier in the temple area.” Thailand cannot after
recognition disproved its own claim.
In addition, Thailand in many occasions,
though it could, did not put forward any inquiry pertaining to the Annex I map
between the parties from the time it was created until 1958.[22]
During this time, when Thailand had the opportunity to conclude the 1925 and
1937 Treaty of Friendship with France, it could have actually revised the
Boundary Settlements of 1893, 1904 and 1907, but it did not. Also, Thailand as
aforementioned conducted a survey on its own in 1934-1935 in the region,
bringing up no question on the issue. These, according the legal concept of
acquiescence, dictate that Thailand accepted the fact in favor of Cambodia.
Furthermore, basing on the legal
principle of prescription which is “the acquisition of title by a public,
peaceful and continuous control of territory,”[23]
The facts that Cambodia from 1904 until 1958 did not experience any strong objection
or protest from the Thai side, which could have undermined the prescription
process, and that Cambodia during that time publicly, peacefully, continuously and
sovereignly ruled the area meant that Cambodia could be legally entitled to
PVT.
All of these above factual and legal
features of the 1962 judgment suggested most of all that PVT together with its
vicinity belongs to Cambodia. It is not disputable. Yet, even to the current
Cambodian government, it still remained questionable; therefore the government
recently in 2011 asked the court for the interpretation, which is personally
seen to be unnecessary and even not a smart move. Firstly, it is crystal clear
that PVT is in Cambodia’s territory and under Cambodia’s sovereignty. Secondly,
the request for interpretation seemed to leave an impression that Cambodia, who
was the victor, was not sure of its victory in 1962. Thirdly, it gave Thailand
another chance to be able to entertain the issue, exploiting it for its own
internal political benefit. Fourthly, it allowed Thailand to attach further
complications to the subject, leading to no advantage but only disadvantage for
Cambodia. Fifthly, it drew much of domestic focus to that one direction, availing
little political attention for other important issues, such as corruption,
increased price of oil, and the like.
The interpretation was done, and
expectedly, the result is not satisfactory. For one thing, the PDZ, inter alia,
was established not on any legal basis but on generic straight lines, as
articulated in paragraph 62 of the court order.[24]
For another, the PDZ includes also PVT, which again, is not disputable. Even
though the order is temporary, Cambodia should not be obliged to pull its own
troops from its own undisputable territory—not even for one minute. It would
have been acceptable to exclude PVT.
All in all, the situation is very clear now that
Cambodia has all the legal supports and that the request proved unsatisfied.
Therefore, instead of the request for interpretation, Cambodia should have
requested the court to enforce the 1962 judgment so as to stop Thailand’s
aggression through the United Nations—as laid down in the UN Charter[25].
The issue would have been much simpler and more effective that way.
[1] BBC, ‘Q&A: Thailand-Cambodia Temple
Dispute’ (18 July 2011)
accessed 28 July
2011
[2] BBC, ‘Thai-Cambodian Troops Must Leave
Preah Vihear Temple’ (18 July 2011)
accessed 28 July 2011
[3] Ibid.
[4] Khmerization, ‘Sam Rainsy: ICJ Decision
Raises the Status of a Thief to the Same Level as the House Owner’ (18 July
2011)
accessed 28 July 2011
[5] Case Concerning the Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: I.C.J. Reports
1962, p.34
[6] Ibid, p.16
[7] Ibid, p.17
[8] Ibid, p.21
[9] Ibid, p.22
[10] Ibid, p.27
[11] Ibid, p.22
[12] The
Statute of International Court of Justice, Art. 38
[13] Supra, p.23
[14] Malcolm N. Shaw, International Law (5th edition, Cambridge University
Press 2004) 437
[15] Supra, p.24
[16] Ibid, p.26
[17] Ibid, p.25 & p.28
[18] Ibid, p.25
[19] Ibid, p.26
[20] Ibid.
[21] Malcolm N. Shaw, 439
[22] Supra, p.27
[23] Rebecca M.M. Wallace, International Law (Sweet & Maxwell
Limited 2002) 94
[24] Request for Interpretation of the
Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear
(Cambodia V. Thailand), Order of July 18, 2011: I.C.J. para. 62.
[25] The
United Nations Charter, 1945, Art. 1.
