Who Owns the Preah Vihear Temple? A Cambodian Position

• Author: Bora Touch
• Position: Lawyer of the Supreme Court of State of New South Wales, Australia, Member of the Cambodian Bar Association, a founder and Board director of the Legal Aid of Cambodia.
• Pages: 205-227

1. Introduction

The issue of the ownership of the Preah Vihear Temple¹ (Temple), which, it will be argued was settled by the International Court of Justice (ICJ) in 1962, was reignited recently following a successful application by Cambodia to have the Temple listed on the UNESCO World Heritage List. On 15 July 2008, Thai armed forces occupied the land surrounding the Temple. Thai troops have been occupying ever since. On 3 October 2008, armed clashes between the Cambodian and Thai armies occurred in three different places around the Temple. The military situation is still tense.²

The territorial dispute over the region of the Temple has been longstanding. In October 1959, following unsuccessful negotiations between the two countries, Cambodia commenced proceedings against Thailand (Proceedings) in the ICJ.³ In the Page 206 Proceedings, the ICJ ruled on the ownership of the Temple and its surrounds and the Judgment states that that the Temple and its surrounds are within Cambodian territory.⁴

Thailand is now asserting that in the Proceedings the ICJ did not address the question of the land boundary nor did it determine the location of the land boundary and, as such, this is a matter yet to be determined under international law.⁵

This paper will argue that the ICJ did, in fact, address the question of the land boundary and that the location of the boundary has been determined.

2. The ICJ Judgment

The Temple is located on a high promontory of the Dangrek mountains which form part of the boundary between Thailand and Cambodia. On 13 February 1904, France (Cambodia, the French Protectorate) and Siam (as Thailand was then known) entered into a treaty (Treaty)⁶ which stipulated, in Article 1, that the boundary was to follow the watershed along the eastern section of the Dangrek mountains.⁷ By virtue of Article 3 of the Treaty, a Franco-Siamese mixed commission (Mixed Commission) was set up to carry out the actual delimitation of the boundary.⁸ By the instructions of the Mixed Page 207 Commission of 2 December 1906, Captains Oum and Kerler of the Mixed Commission, surveyed and fixed the section of the boundary between Kel pass and the Col de Preah Chambot, which included the area of the Temple.⁹ Following the survey, the Siamese government requested France to prepare and publish maps of the frontier. In autumn 1907, eleven maps were completed and provided to Thailand in 1908. One of the maps (referred to as “Annex 1”in the Proceedings) showed the Temple in Cambodian territory.

Cambodia claimed sovereignty over the region of the Temple on the basis that Thailand had accepted Annex I then and was therefore precluded from subsequently denying the validity of Annex I.¹⁰

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Thailand’s defense in the Proceedings was, in summary, as follows:

(1) Annex I was not the work of, and was only prepared by one party to, the Mixed Commission and thus was not binding on it; (2) the map contained a material error as the Commission did not have power to deviate from the watershed in such a significant margin;¹¹ (3) it never accepted the map or the frontier depicted on it such that it was bound or, alternatively, if it had accepted the map, it did so on a mistaken belief that the map line was drawn to correspond with the watershed line. In its counter-claim, Thailand claimed territorial sovereignty over the Temple.¹²

The ICJ relevantly ruled in the Proceeding:

(1) although the preparation (the drawing) and publication of the map were not approved by the Mixed Commission, Annex I was based on the work of the Mixed Commission and was valid. According to the ICJ, the essential question in the Proceedings was “whether the Parties did adopt the Annex I map, and the line indicated on it, as representing the outcome of the work of delimitation of the frontier in the region of Preah Vihear, thereby conferring on it a binding character.” ¹³

(2) Even if there was an error in the preparation of Annex I, Thailand had adopted Annex 1. According to the ICJ, it is an “established rule of law that a plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its 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.” ¹⁴

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(3) Thailand had accepted the boundary map and now was precluded from denying it¹⁵. According to the ICJ: “Even if there were doubt as to Siam’s acceptance of the map in 1908, and hence of the frontier indicated thereon, the Court would consider, in light of the subsequent course of events, that Thailand is now precluded by her conduct from asserting that she had not accepted it.” ¹⁶

The ICJ rejected the Thai claim of sovereignty over the Temple. It was contradictory for Thailand to argue on the one hand that the boundary had not been determined and, on the other hand, that it had acted in a way that resulted in Cambodia relinquishing sovereignty. The implication of the Thai argument on the sovereignty claim was that it believed that boundary line was correct. In such circumstances, the presence of Thai authorities was a deliberate violation of the Cambodia’s sovereignty. Thailand could not have both ways.17

By its Note of 6 July 1962 to the Secretary General of the United Nations (the 1962 Note), Thailand decided, with reservation, to “comply with the decision of the International Court of Justice.” ¹⁸ All the successive Thai governments “accepted”the ICJ ruling.¹⁹ On 15 July 1962, Thailand evacuated the Temple and its surrounds.20

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Map 1: Recent map for the same area unilaterally prepared and presented by the kingdom of thailand. The grey colored area indicates the claim by Thailand.

[SEE MAP IN ATTACHED PDF]

3. The Current Dispute

In a letter dated 21 July 2008 from the Permanent Representative of Thailand to the President of the UN Security Council (2008 Letter), Thailand asserted, in summary, that:

•the ICJ ruled that it did not have jurisdiction over the question of the land boundary;

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•the ICJ did not determine the land boundary; and

•the matter of the land boundary is yet to be determined in international law.²¹

In relation to the first point, Thailand referred to Cambodia’s initial submissions in the Proceedings where Cambodia sought determination of the following issues:

(1) that [Thailand] is under an obligation to withdraw the detachments of armed forces it has stationed since 1954 in the ruins of the Temple of Preah Vihear;

(2) That the territorial sovereignty over the Temple of Preah Vihear belongs to [Cambodia].

Based on these initial submissions, Thailand asserts that the jurisdiction of the ICJ in the Proceedings was restricted to determination of sovereignty over the Temple itself. Thailand refers to the ICJ’s Judgment of 15 June 1962 (Merits) where the ICJ stated, in part: “the subject of the dispute submitted to the Court in confined to a difference of view about sovereignty over the region of the Temple of Preah Vihear.” ²² Thailand further relies on the ICJ’s statement that: “Cambodia’s first and second Submissions, calling for pronouncement on the legal status of the Annex I Map and on the frontier line in the disputed region, can be entertained only to the extent that they give expression to the grounds, and not as claims to be deal.”

In relation to the second point made by Thailand in the 2008 Letter, that the ICJ did not determine the issue of the land boundary, Thailand asserts that the only operative findings of the ICJ in the Proceedings are:

(a) The Temple of Preah Vihear is situated in territory under sovereignty of Cambodia;

(b) 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; and

(c) Thailand is under obligation to restore to Cambodia any objects of idols 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.²³

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Thailand asserts that the ICJ had regard to the issue of the frontier line only to determine the narrower dispute of territorial sovereignty over the Temple.

Finally, in relation to its assertion in the 2008 Letter that “[t]he precise location of the boundary line is still to be determined,”Thailand asserts:

Cambodia’s first and second Submissions, calling for pronouncement on the legal status of the Annex I Map and on the frontier line in the disputed region, can be entertained only to the extent that they give expression to the grounds, and not as claims to be deal with in the operative provisions of the judgment.²⁴

The crux of Thailand’s argument is that Annex I is not an integral part of the Treaty, the ICJ did not give Annex I legal status and, in any event, the basis for demarcation is not Annex I but the Treaty “which defines the boundary line in this area along the watershed line.” ²⁵

4. The ICJ had jurisdiction over the issue of the land boundary

The ICJ did have jurisdiction over both the territorial and boundary questions and the boundary was clearly determined by the ICJ.

Although the Terms of Reference in the Proceedings referred to the territorial sovereignty dispute, this is the case that can be defined as relating to both boundary and territorial disputes.²⁶ This is because, Cambodia based its...