The World Heritage Committee on Tuesday, 9 July 2008 unanimously approved the inscription a Khmer temple of Preah Vihear as a World Heritage Site.
Summary of the Judgment of 15 June 1962[1]
CASE CONCERNING THE TEMPLE OF PREAH VIHEAR
(MERITS)
Judgment of 15 June 1962
Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia and Thailand, were instituted on 6 October 1959 by an Application of the Government of Cambodia; the Government of Thailand having raised two preliminary objections, the Court, by its Judgment of 26 May 1961, found that it had jurisdiction.
In its Judgment on the merits the Court, by nine votes to three, found that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that Thailand was 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.
By seven votes to five, the Court found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, 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.
Judge Tanaka and Judge Morelli appended to the Judgment a Joint Declaration. Vice-President Alfaro and Judge Sir Gerald Fitzmaurice appended Separate Opinions; Judges Moreno Quintana, Wellington Koo and Sir Percy Spender appended Dissenting Opinions.
* *
In its Judgment, the Court found that the subject of the dispute was sovereignty over the region of the Temple of Preah Vihear. This ancient sanctuary, partially in ruins, stood on a promontory of the Dangrek range of mountains which constituted the boundary between Cambodia and Thailand. The dispute had its fons et origo in the boundary settlements made in the period 1904-1908 between France, then conducting the foreign relations of Indo-China, and Siam. The application of the Treaty of 13 February 1904 was, in particular, involved. That Treaty established the general character of the frontier the exact boundary of which was to be delimited by a Franco-Siamese Mixed Commission.
In the eastern sector of the Dangrek range, in which Preah Vihear was situated, the frontier was to follow the watershed line. For the purpose of delimiting that frontier, it was agreed, at a meeting held on 2 December 1906, that the Mixed Commission should travel along the Dangrek range carrying out all the necessary reconnaissance, and that a survey officer of the French section of the Commission should survey the whole of the eastern part of the range. It had not been contested that the Presidents of the French and Siamese sections duly made this journey, in the course of which they visited the Temple of Preah Vihear. In January-February 1907, the President of the French section had reported to his Government that the frontier-line had been definitely established. It therefore seemed clear that a frontier had been surveyed and fixed, although there was no record of any decision and no reference to the Dangrek region in any minutes of the meetings of the Commission after 2 December 1906. Moreover, at the time when the Commission might have met for the purpose of winding up its work, attention was directed towards the conclusion of a further Franco-Siamese boundary treaty, the Treaty of 23 March 1907.
The final stage of the delimitation was the preparation of maps. The Siamese Government, which did not dispose of adequate technical means, had requested that French officers should map the frontier region. These maps were completed in the autumn of 1907 by a team of French officers, some of whom had been members of the Mixed Commission, and they were communicated to the Siamese Government in 1908. Amongst them was a map of the Dangrek range showing Preah Vihear on the Cambodian side. It was on that map (filed as Annex I to its Memorial) that Cambodia had principally relied in support of her claim to sovereignty over the Temple. Thailand, on the other hand, had contended that the map, not being the work of the Mixed Commission, had no binding character; that the frontier indicated on it was not the true watershed line and that the true watershed line would place the Temple in Thailand, that the map had never been accepted by Thailand or, alternatively, that if Thailand had accepted it she had done so only because of a mistaken belief that the frontier indicated corresponded with the watershed line.
The Annex I map was never formally approved by the Mixed Commission, which had ceased to function some months before its production. While there could be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector, the Court nevertheless concluded that, in its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation; since there was no reaction on the part of the Siamese authorities, either then or for many years, they must be held to have acquiesced. The maps were moreover communicated to the Siamese members of the Mixed Commission, who said nothing, to the Siamese Minister of the Interior, Prince Damrong, who thanked the French Minister in Bangkok for them, and to the Siamese provincial governors, some of whom knew of Preah Vihear. If the Siamese authorities accepted the Annex I map without investigation, they could not now plead any error vitiating the reality of their consent.
The Siamese Government and later the Thai Government had raised no query about the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1935 a survey had established a divergence between the map line and the true line of the watershed, and other maps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the watershed line. Thailand had stated that having been, at all material times, in possession of Preah Vihear, she had had no need to raise the matter; she had indeed instanced the acts of her administrative authorities on the ground as evidence that she had never accepted the Annex I line at Preah Vihear. But the Court found it difficult to regard such local acts as negativing the consistent attitude of the central authorities. Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received there by the French Resident for the adjoining Cambodian province, Siam failed to react.
From these facts, the court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be given now would be the same.
The Court therefore felt bound to pronounce in favor of the frontier indicated on the Annex I map in the disputed area and it became unnecessary to consider whether the line as mapped did in fact correspond to the true watershed line.
For these reasons, the Court upheld the submissions of Cambodia concerning sovereignty over Preah Vihear.
(France-Version): The Khmer-Thai Border and the Temple of Preah Vihear[2]
1. In 1904, France, powerful guardian of Cambodia, and Siam signed a convention to determine a final border between Cambodia and Siam.
2. In 1907, the Franco-Siamese treaty passed to Cambodia the three provinces which had annexed by Siam. The treaty confirms the provisions of the Convention of 1904 regarding the modalities of delimitation of the border.
3. In 1908, a joint Franco-Siamese commission created by this treaty determined the border in the Dangrek sector and clearly indicated that the temple of Preah Vihear and its surroundings are inside Cambodian territory.
4. In 1925, France and Siam signed a friendship treaty whose Article 2 states that “the High Contracting Parties confirm, to ensure mutual respect, the borders between their territories in accordance with and in conformity with the stipulations of the previous agreements.”
5. In 1926, a Convention on the Mekong confirmed Article 2 of the Treaty of 1925.
6. In 1937, a new friendship treaty incorporated the provisions of the 1925 Treaty on the borders.
7. In 1946, after Thailand, ally of Japan, had occupied three Cambodian provinces, the Franco-Siamese Settlement Agreement restored the Treaty of 1937. The Franco-Siamese Conciliation Commission considers that the clauses of the Treaty of 1907 on the border between Thailand and Cambodia should not be revised.
8. In 1954, while Cambodia has gained its independence, a Thai army occupies the temple of Preah Vihear and its surroundings in violation of international treaties signed.
9. In June 1962, the International Court of Justice, at the request of Cambodia, makes a judgment confirming the sovereignty of Cambodia on the Temple of Preah Vihear and its surroundings under the established boundary line which was confirmed by successive treaties and has never been, until now, the subject of dispute on the part of Thailand. “The Court therefore feels obliged, from the viewpoint of the interpretation of treaties, to vote in favor of the border marked on the map to the disputed area.” (Page 35 of the Judgment). The judgment states that “Thailand is obliged to withdraw all elements of the armed forces or police or guards or other guards it has deployed in the temple and its surroundings located in Cambodian territory” (page 37).
10. In July 1962, Thailand accepted the judgment of the International Court of Justice and did not make any appeal ten years that followed, during which it could do so.
11. In July 1967, Mr. Thanat Khonan, Thai Minister of Foreign Affairs said: “Thailand has no territorial claims in Cambodia. The position of Thailand has always been to say that there is no dispute on the borders with Cambodia insofar as it has consistently complied with the treaty signed with France at the time when the latter was the power guardian of Cambodia.”
12. In June 2000, Cambodia and Thailand signed a Memorandum of Understanding (MOU) for the demarcation and the demarcation of the border between the two countries in respect of treaties and conventions signed and maps drawn up under these treaties and conventions (Article 1c).
13. In 2001, Cambodia formally requested the inclusion of the temple of Preah Vihear on the list of World Heritage by UNESCO.
14. In May 2003, Cambodia and Thailand signed a document entitled “Terms of Reference and Master Plan for the Joint Survey and Demarcation of Land Boundary between the Kingdom of Cambodia and the Kingdom of Thailand” (TOR). This document makes explicit reference to the Convention of 1904, the Treaty of 1907, the maps drawn and the MOU of June 2000. Shortly afterwards, referring to the commitments of the MOU and the TOR, Thailand publishes a map with a unilateral border which calls into question the route in force since 1908 and along the immediate vicinity of the temple of Preah Vihear.
15. On 18 June 2008, Cambodia and Thailand signed a joint statement by which Thailand supports the Cambodian request for inclusion of the temple of Preah Vihear on the list of World Heritage by UNESCO and is clarified that the registration is done without prejudice to the work of demarcation provided by the MOU of 2000 and the TOR of 2003.
16. On 21 June 2008, General Prem Tinsulanonda, Adviser to the King of Thailand, expressed its support for Thai protesters who oppose the inclusion of the temple.
17. On July 1, 2008, the Thai government withdrew its support for the inclusion of the temple.
18. On July 7, 2008, the World Heritage Committee of humanity registered the temple on the list of World Heritage Sites. The Minister of Foreign Affairs of Thailand expressed his opposition in vain.
19. On 15 July 2008, the Thai armed forces violated the territorial integrity of Cambodia in the area of Preah Vihear and, therefore, treaties and conventions and joint documents signed by Thailand.
These are the facts. They are verifiable and non-questionable. It follows from these facts that a border exists between Cambodia and Thailand, whose route has been repeatedly confirmed by Thai authorities in the past century. Accordingly, the temple and its surroundings are fully under the exclusive sovereignty of Cambodia. It noted the fragility of the commitments of Thailand which appears as a reluctant partner to honor his signature.
The decisive evidence of the ICJ case in 1962
The Temple of Preah Vihear
- I. Legal terminology
Estoppel[3]
A legal doctrine which has evolved over the past couple of centuries, which essentially means that an individual cannot deny the truth of a statement made by him or her, or the existence of facts on which other people have relied because of his or her words or behavior.
Estoppel broadly means that someone is stopped or prevented from saying, doing or contesting something. The word is derived from the old French estoupail meaning ‘cork’; the modern French etouper means ‘to stop up’.
A form of estoppels is ‘equitable estoppels’; this would apply, for example, in the case of a neighbor building on your land, presuming it to be his. If you let him go ahead instead of telling him it is your land, equity would not allow you later to require him to remove the building from your land.
Acquiescence[4] Abstaining from interference while one’s rights are being violated
Error in concluding a treaty[5] Article 48 of Vienna Convention on the Law of Treaties 1969
1- State might invoke error in a treaty invalidating its consent to be bound by the treaty if the error related to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
2- Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error.
3- An error relating only to the wording of the text of a treaty does not affect its validity; Article 79 then applies
II. Problems and application of legal principle in the temple case (Summary of the Temple case’s judgment is attached)[6]
Facts:
In the eastern sector of the Dangrek range, in which Preah Vihear was situated, the frontier was to follow the watershed line. For the purpose of delimiting that frontier, it was agreed, at a meeting held on 2 December 1906, that the Mixed Commission should travel along the Dangrek range carrying out all the necessary reconnaissance, and that a survey officer of the French section of the Commission should survey the whole of the eastern part of the range. It had not been contested that the Presidents of the French and Siamese sections duly made this journey, in the course of which they visited the Temple of Preah Vihear. In January-February 1907, the President of the French section had reported to his Government that the frontier-line had been definitely established. It therefore seemed clear that a frontier had been surveyed and fixed, although there was no record of any decision and no reference to the Dangrek region in any minutes of the meetings of the Commission after 2 December 1906. Moreover, at the time when the Commission might have met for the purpose of winding up its work, attention was directed towards the conclusion of a further Franco-Siamese boundary treaty, the Treaty of 23 March 1907.
The final stage of the delimitation was the preparation of maps. The Siamese Government, which did not dispose of adequate technical means, had requested that French officers should map the frontier region. These maps were completed in the autumn of 1907 by a team of French officers, some of whom had been members of the Mixed Commission, and they were communicated to the Siamese Government in 1908. Amongst them was a map of the Dangrek range showing Preah Vihear on the Cambodian side. It was on that map (filed as Annex I to its Memorial) that Cambodia had principally relied in support of her claim to sovereignty over the Temple.
Thai arguments:
Thailand, on the other hand, had contended that the map, not being the work of the Mixed Commission, had no binding character; that the frontier indicated on it was not the true watershed line and that the true watershed line would place the Temple in Thailand, that the map had never been accepted by Thailand or, alternatively, that if Thailand had accepted it she had done so only because of a mistaken belief that the frontier indicated corresponded with the watershed line. Thailand argued that the map embodied a material error because it did not follow the watershed line as required by the treaty
ICJ’s statements:
While there could be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector, the Court nevertheless concluded that, in its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation; since there was no reaction on the part of the Siamese authorities, either then or for many years, they must be held to have acquiesced. The maps were moreover communicated to the Siamese members of the Mixed Commission, who said nothing, to the Siamese Minister of the Interior, Prince Damrong, who thanked the French Minister in Bangkok for them, and to the Siamese provincial governors, some of whom knew of Preah Vihear. If the Siamese authorities accepted the Annex I map without investigation, they could not now plead any error vitiating the reality of their consent.
The Siamese Government and later the Thai Government had raised no query about the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1935 a survey had established a divergence between the map line and the true line of the watershed, and other maps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the watershed line. Thailand had stated that having been, at all material times, in possession of Preah Vihear, she had had no need to raise the matter; she had indeed instanced the acts of her administrative authorities on the ground as evidence that she had never accepted the Annex I line at Preah Vihear. But the Court found it difficult to regard such local acts as negativing the consistent attitude of the central authorities.
Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received there by the French Resident for the adjoining Cambodian province, Siam failed to react.
From these facts, the court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be given now would be the same.
The Court therefore felt bound to pronounce in favour of the frontier indicated on the Annex I map in the disputed area and it became unnecessary to consider whether the line as mapped did in fact correspond to the true watershed line.
For these reasons, the Court upheld the submissions of Cambodia concerning sovereignty over Preah Vihear.
III- Validity of treaties (Legal implication derived from the temple case judgment)
Error in concluding a treaty[7]
Article 48 of Vienna Convention on the Law of Treaties 1969
4- State might invoke error in a treaty invalidating its consent to be bound by the treaty if the error related to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
5- Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error.
6- An error relating only to the wording of the text of a treaty does not affect its validity; Article 79 then applies.
In the Temple case, the ICJ was asked to rule that Cambodia, and not Thailand, had sovereignty over the Temple of Preah Vihear and that Thailand should both remove the armed guards and other persons it had placed in the Temple since 1954 and return sculptures an other objects it had taken therefrom. The treaty stated that it was to follow the watershed line and provided for the details to be worked out by a Mixed Franco-Siamese Commission. Surveys were conducted by technical experts for the Commission on the basis of which a map [the Annex I map] was prepared. This clearly placed the Temple in Cambodia. The map was never approved by the Commission which did not meet again after the map had been made. Thailand argued, inter alia, that the map embodied a [material error] because it did not follow the watershed line as required by the treaty. It argued this even though, as the Court found, the Siamese had received and accepted the map. The Court rejected Thailand’s argument as follows:
It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on notice of a possible error. The Court considers that the character and qualifications of the persons who saw the Annex I map on the Siamese side would alone make it difficult for Thailand to plead error in law. These persons included the members of the very Commission of Delimitation within whose competence this sector of the frontier had lain …
VI- Ambiguous principle (Different application/interpretation of “Estoppel” principle)[8]
By analogy with principles of municipal law, and by reference to decisions of international tribunals, Professor Bowest[9] has stated the essential of estoppels to be:
- a statement of fact which is clear and unambiguous;
- this statement must be voluntary, unconditional, and authorized; and
- there must be reliance in good faith upon the statement either to the detriment of the party so relying on the statement or to the advantage of the party making the statement.
Two cases used “estoppels” differently:
In the Arbitral Award by the King of Spain case, Nicaragua challenged the validity of the award on several grounds: the Court held the award valid and stated that it was no longer open to Nicaragua, who, by express declaration and by conduct, had recognized the award as valid, to challenge its validity.
In the Temple case Thailand sought to avoid a frontier agreement on the ground of error. In this case also the Court held that Thailand was precluded by her conduct from asserting that she did not accept the treaty. These cases support a particular type of estoppel, but the rule concerned could operate independently of any general doctrine of estoppel.
The Geographer, Office of the Geographer, Bureau of Intelligence and Research: “ Int ernational Boundary Study: Cambodia-Thailand Boundary”, No. 40 (Revised), [Department of State, Wasington DC.],
m/edna/dictionary.asp?action=content&content=estoppel
[4] Butterworths: Concise Australian Legal Dictionary (Third Edition)
[5] DJ Harris, Cases and Materials on International Law, Six Edition, Thomson (Sweet & Maxwell) p. 850
[6] http://www.icj-cij.org/docket/index.php?sum=284&code=ct&p1=3&p2=3&case=45&k=46&p3=5
[7] DJ Harris, Cases and Materials on International Law, Six Edition, Thomson (Sweet & Maxwell) p. 850
[8] My personal views
[9] BY (1957), 176 at 202. Oxford Principles of Public International Law, Sixth Edition, p. 615
