By Hang Chuon Naron
The Kingdom of Cambodia adheres to the rule of law and respects for international law. After Cambodia attained independence in 1953, Thailand moved to occupy in 1954 the PREAH VIHEAR temple. Cambodia filed a lawsuit in 1959 with the International Court of Justice in The Hague, which rules in 1962 that “the PREAH VIHEAR temple is situated in territory under the sovereignty of Cambodia”.
In order to adjudicate, the Court reviewed the 1904 and the 1907 boundary treaties between France (Cambodia’s protecting Power) and Siam (Thailand), and the work of the French-Siamese Mixed Commissions of Delimitation, as well as the maps prepared by the commissions.
The relationships between Cambodia and Thailand related to the PREAH VIHEAR temple dated back to the colonial era. After intense negotiations, France signed a boundary treaty with Siam on 13 February 1904. Mixed Commissions of Delimitation composed of officers appointed by the two Contracting Parties was established to determine the exact course of this frontier.
The whole work of delimitation had been finished at the end of January 1907 without incident and the exact course of the frontier was definitely established. A map produced by the Royal Thai Survey Department in the 1960s mentioned “Route followed by the Mixed Commission of 1904”. After having finished in substance the work on the ground, the Commission prepared reports and provisional maps in February-March 1907.
The final stage of the operation of delimitation was the preparation and publication of maps. For the execution of this technical work, the Siamese Government had officially requested that French topographical officers should map the frontier region. The French Government duly arranged for the work to be done by a team of French officers, who completed a series of eleven maps. The maps were printed and published by a well-known French cartographical firm, H. Barrère, and were communicated in due course to the Siamese Government as requested.
The map concerning the Dangrek region (including the border adjacent to the Temple, and referred to as the Annex I map) was completed in late autumn 1907, when the new 23 March Treaty 1907 came into existence, thus bringing the final settlement of the territories between France and Siam. After a careful examination of the history of the map and the circumstances of its creation, the Court concluded that be little doubt about the origins of the map: “What is certain is that the map must have had a basis of some sort, and the Court thinks that there can be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector.”
The work of demarcation (installing border poles) was carried out in 1908-1909. A total of 73 border poles were installed along the frontier of the two countries.
Thailand later on contested the map. The fact that the map was produced after the Commission ended, and may not have been consistent with the text of the 1904 Treaty which referred to a border using the watershed. Thailand has argued that the line of the frontier must necessarily – by virtue of Article I of the Treaty of 1904 – follow strictly the line of the true watershed. The question was raised as to whether the map could be held to be valid under the circumstances. The Court expressed its opinion: “The real question, therefore, which is the essential one in this case, is 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.” Moreover, the Court specifically rejected the Thai argument concerning the map’s departure from the watershed line, stating “it was certainly within the powers of the Governments to adopt such departures.”
More importantly, in the eyes of the Court, was that the map was adopted by the two governments as representing the border. In its judgment, the Court recounts the dissemination of the Annex I map within the Royal Thai government and the adoption of the border in a subsequent map produced by the Royal Thai Government Survey Department.
The Court considers that the publication and communication of the eleven maps, including the Annex I map, was something of an occasion. The maps were given wide publicity in all technically interested quarters by being also communicated to the leading geographical societies in important countries, to the Siamese legations accredited to the British, German, Russian and United States Governments, and to all the members of the Mixed Commission.
The acknowledgement of the maps by conduct was undoubtedly made in a very definite way by Thailand. Moreover, the Siamese authorities did not disagree with the map, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset.
That the Siamese authorities by their conduct acknowledged the receipt, and recognized the character, of these maps, and what they purported to represent, is shown by the action of the Minister of the Interior, Prince Damrong, in thanking the French Minister in Bangkok for maps, and in asking him for another fifteen copies of each of them for transmission to the Siamese provincial Governors. The maps were seen by such persons as Prince Davawongse, the Foreign Minister, Prince Damrong, the Interior Minister, the Siamese members of the Commission of Transcription.
In sum, Thailand accepted the map without any independent investigation, and the Court states that Thailand cannot therefore now plead any error vitiating the reality of their consent. Secondly, Thailand could have raised with the French authorities the question of the Annex I map during the negotiations to conclude the 1925 and 1937 treaties between France and Siam, if she considered the map indicating the frontier at PREAH VIHEAR to be incorrect.
Based on all of the evidence, the ICJ concluded that “Thailand in 1908-1909 did accept the Annex I map as representing the outcome of the work of delimitation, and hence recognized the line on that map as being the frontier line, the effect of which is to situate Preah Vihear in Cambodian territory.” The Court concluded that “the acceptance of the Annex I map by the Parties caused the map to enter the treaty settlement and to become an integral part of it.” The Court considers further that Thailand’s subsequent conduct confirms and bears out her original acceptance, and that Thailand’s acts on the ground do not suffice to negative this. Both Parties, by their conduct, recognized the line and thereby in effect agreed to regard it as being the frontier line.
In 2000, Cambodia and Thailand signed an MOU on border issues, referring to the above international border treaties, in order to reaffirm the border demarcation.
Unfortunately, Thailand position on the border has changed when Cambodia objected to her proposal to jointly list the PREAH VIHEAR temple, leading to its joint management. Why Cambodia wants to have joint management with another country of her own cultural heritage.
The PREAH VIHEAR issue has been used by the opposition Democrat Party in Thailand to topple the government in Bangkok. When political turmoil in Bangkok was heating up immediately prior to the 2008 World Heritage Committee meeting in Canada, the Thai government aggressively promoted the map which drew the border substantially inside the previously recognized demarcation line with Cambodia. At the time it was unveiled, the Royal Thai Government authorities stated that the map that they had unilaterally drawn represents the long-standing position of the Royal Thai Government regarding the border after the ICJ decision in 1962. But to the extent that the map had been created and adopted unilaterally by the Royal Thai Government, it had not been promoted in the years following the ICJ decision as the Thai perception of the real border.
Cambodia’s sovereignty was therefore confirmed by the inscription of the PREAH VIHEAR temple by the international community on the List of World Heritage on 7th July 2008 at the 32nd session of the World Heritage Committee in Quebec. Cambodia, therefore, has two legitimacies within the framework of the United Nations: (i) the International Court of Justice at The Hague; and UNESCO. We will not discuss and don’t want to discuss with anyone the question of PREAH VIHEAR.
For over 40 years, Thailand did not openly dispute the ICJ border. The fact that it had kept its unilateral map out of public view was underscored by the recent revelation of a map produced by the Royal Thai Survey Department during the conflictive period of Cambodia’s recent history. Although there is no date on the map, it is clear that it was created at some time from the assumption of the Khmer Rouge regime in 1975 and the end of the war in Cambodia at the end of the 1990s. This is clear because the Cambodian side of the border is marked “Democratic Kampuchea,” the name assumed by the Khmer Rouge government for the country.
The border depicted on the map that identified Cambodia as “Democratic Kampuchea” is the same as the border on the unilateral map as unveiled in Christchurch World Heritage session and publicly promoted by the Royal Thai Government before the following Quebec City meeting. But the map produced by the Royal Thai Government Survey Department during the time of Democratic Kampuchea is marked “secret” in the Thai language. Accordingly, such aspect of the map that the Royal Thai Government Survey Department was warning the map users to keep from public view. (The legend placed on the Thai map of the border with “Democratic Kampuchea” reads in full in the Thai language: “Reminder: This map is a secret document. Map user should keep it very carefully for the safety of Thailand.”)
It must have been a great disappointment to the Thai officials that, when peace was finally achieved in Cambodia, they had not taken back the Temple. But they kept the map of the border near Preah Vihear Temple secret and waited for the moment when they could advance their territorial ambitions and encroach on the land adjacent to the Temple. If they could not have the Temple itself, then they determined that they could control the land around it.
While emotions were still running high in Bangkok, it must have seemed the best time to implement the long standing desire to advance the objective of redrawing the border. The invasion started with a subterfuge.
Following the inscription of the PREAH VIHEAR temple on the List of the World Heritage, on July 15, 2008 – just one week after the inscription – Thai military troops entered Cambodia near the Temple of Preah Vihear. The Thai armed forces used the pretext of going in to negotiate the release of a Thai monk, nun and layman who had illegally entered the area. In fact, the Thai soldiers had gone into Cambodia to occupy the area proximate to the Temple. Defying the United Nations Charter and fundamental international law, the Thai military troops entered the Keo Sikha Kiri Svara pagoda, which local Cambodians used as a place of worship. The pagoda, which is approximately 700 meters inside Cambodia, is only 300 meters from the Temple.
The use of brute military forces on the ground by the Royal Thai Government to justify a failed objection on the international arena, in Quebec City was beyond comprehension, and it was vicious and despicable. The Cambodian soil will be defended at all costs, but the whole nation is reasonably patient..
Thailand’s argument – the inscription of the PREAH VIHEAR temple on the List of World Heritage has provoked border dispute is false. In any case, the border issue should be settled by way of bilateral negotiations. It is neither a matter for UNESCO nor for the World Heritage Committee to consider. Between the two countries, Cambodia and Thailand, there is a mixed commission. It is the mixed commission that resolves technical problems of verification of border poles and demarcation.