The Preah Vihear dispute

 

By Lennert Breuker

Although the news of (late) last week was understandably dominated by the events in Egypt, most media reported very briefly about the hostilities that broke out – again – on the Thai-Cambodian border. Fighting erupted between the military forces of both countries allegedly over a disputed land zone surrounding a 900 year old Hindu temple. ‘Allegedly’ as the most recent skirmishes may just as well have arisen over sentiments of ownership with respect to the temple itself. The temple in question is named Preah Vihear, and is one of the most beautifully located and popular temples that originate from the ancient Khmer empire.

Ownership of the temple and the adjacent area has been in dispute for over half a century by now. When French colonial forces withdrew from Cambodia following Cambodia’s independence in 1953, Thai forces took control of the temple in 1954. As diplomatic protests yielded nothing, Cambodia brought the case before the International Court of Justice in 1959. It asked the Court to rule that Thailand should withdraw its armed forces from the temple and to declare that the territorial sovereignty over the temple belongs to Cambodia.

Thailand apparently did not want the case to proceed to the merits, as they disputed the Court’s jurisdiction, but unsuccessfully. The Court assumed jurisdiction and focused on the work of a so-called ‘mixed’ commission, which was instructed to delimit the border between French Indochina and Siam in the context of a boundary treaty in 1904. With respect to the area in which Preah Vihear was located, the commission, composed of French and Siamese officials, was supposed to follow the watershed line as frontier. The commission travelled through the region and agreed on the proper delimitation, without documenting what had been agreed upon precisely. The concluding stage of the delimitation-process was the production of maps. Perhaps it is best to cite the summary of the judgment at this point: 

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 accepted by the Commission, which had ceased to exist a few months prior to its completion. So the map had no binding character according to the Court. But there was no doubt that the map had been communicated to the Siamese government representing the outcome of the work on delimitation. And since the government failed to react in any way, the Court concluded that ‘they must be held to have acquiesced.’ (p.23 of the Judgment of 15 June 1962).

 

Neither the government, nor Siamese members of the mixed commission, nor the Minister of Interior, who thanked the French minister in Bangkok for the maps asking for further copies, nor several Siamese governors who knew about the location of Preah Vihear, expressed any form of disagreement with the mapped end result.

The Court noted that at later points in time, where it may have been logical and opportune to express dissent with the delimitation, the (then) Thai government remained silent. Even when a survey conducted by Thailand in 1934-1935 exposed the divergence between the watershed line and the map line, no formal protest had been made. Although after the survey, Thailand started to produce maps placing Preah Vihear on Thai territory, Thailand continued to use the Annex I map, even for formal and public purposes.

And perhaps even more conspicuously, when Thailand and France were engaged in negotiating a Settlement Agreement after the war in 1946, Thailand did not raise the issue, despite the fact that a commission had been set up especially to  

…go into, and make recommendations on an equitable basis in regard to, any complaints or proposals for revision which Thailand might wish to make as to, inter alia, the frontier settlements of 1904 and 1907.’ (Judgment p.28).

Whereas Thailand complained about several other regions, she remained silent about the matter of Preah Vihear. The Court concluded that by now Thailand was well aware of the fact that France considered Preah Vihear as part of Cambodian territory – for instance by the formal reception of the Thai Minister of Interior by the French upon his visit to the temple – and that by inference, Thailand’s failure to object at any time was to be taken as acceptance of the mapping line as frontier. Hence, the Court upheld Cambodia’s claim to territorial sovereignty over the temple by a nine-to-three vote.

The case did not put an end to the conflict though, as Thailand was not able to accept the ruling. Mass demonstrations were organized in protest of the judgment, and Thailand stated it would boycott meetings of the South East Asia Treaty Organisation. Eventually, Thailand conceded.

But the conflict was revived when Cambodia nominated Preah Vihear as UNESCO World Heritage Site in 2008, although tthe ownership claim now shifted from the temple to the area adjacent to the temple. Thailand initially supported the nomination, but it withdrew its support under pressure of nationalistic forces who accused the Thai government of failing to defend Thai sovereignty. They feared that the World Heritage Site status would ‘consume’ the area surrounding the temple, which was still disputed.

It has been asserted in some news reports that the ICJ judgment left room for continued disagreement since it only pronounced on the question of territorial sovereignty over the temple, and not on the land next to it. Without knowledge of the map and what territory is actually disputed at the moment, I’m compelled to exercise self-constraint at this point, but I still wonder how tenable this viewpoint is.

It is correct that the Court limited its ruling to the temple. The procedure before the Court is structured on the principle of party-autonomy, meaning that it is up to the parties to determine the scope of the legal dispute and by implication of the legal questions the Court will have to answer. Cambodia asked the Court to rule on the territorial sovereignty over Preah Vihear, and not over the adjacent land. But the Court did clearly and repeatedly hold that Thailand – by its own conduct – recognized the line as established in the Annex I map, and thereby the frontier between both countries. It seems to me that the legal status not only of Preah Vihear, but also of the disputed lands derives from the map. Thus the fighting does not seem to result from any legal uncertainty, but from other factors.

Regardless, it may be doubted whether these other factors weigh up against the human cost. Here’s a link that shows that the antagonistic position of the Thai nationalists is not shared by everyone.

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