Kantathi Suphamongkhon wrote about the military clashes over the Hindu temple of Preah Vihear, and the issue of border demarcation in the May 2011 issue of "Business Report Thailand."
Border demarcation has been one of the most contentious and dangerous areas in international relations. Wars have been fought and lives have been lost because of border demarcation problems around the world. In South East Asia, much of the 500 miles of border between Cambodia and Thailand remains unmarked and unclear, in need of precise demarcation.
In recent months, the Temple of Preah Vihear has once again been a point of conflict between Cambodia and Thailand, leading to the United Nations Security Council meeting this past Valentine’s Day. The site of the Hindu temple is no stranger to conflict and controversy given its history over the course of the twentieth century.
The France Siam Boundary Treaties of 1904 and 1907 required that the watershed principle would be used to demarcate the borders between Thailand, then Siam, and Cambodia, then a French colony with France acting as its protecting and governing power. The Franco-Siamese Mixed Commission was assigned to delimit the border, in which Thailand, lacking the technical means, asked the French to draw the map. The resulting map used the watershed principle in general, but deviated at the Temple, placing it inside Cambodia. Had the watershed principle been adhered to, the Temple would have likely been placed inside Thailand, completely.
In addition, the fact that access to the Temple was easy from the Thai side coming up from the central plains, whereas the high cliff constituted a formidable barrier from Cambodian territory, also supported the legal argument that the Temple should be under Thailand’s sovereignty.
With Cambodia’s independence from France in 1953, Thailand took physical control of the Temple and its grounds, to which Cambodia responded in 1959, by taking Thailand to the International Court of Justice (ICJ) for a decision on sovereignty over the Temple.
Under international law, the ICJ does not have automatic jurisdiction over sovereign states. The consent of each individual sovereign state was needed in order for the ICJ to exercise jurisdiction. Thailand initially argued that the ICJ had no jurisdiction over Thailand since it had not given consent to be bound by the ICJ. The ICJ ruled that its jurisdiction over Thailand was based on Thailand’s declaration of 20 May 1950 on its 1929 acceptance of the compulsory jurisdiction of the Permanent Court of International Justice, the predecessor to the ICJ, born of the League of Nations.
Thailand had strong legal principles in its favour regarding its sovereignty over the Temple. Why then did Thailand lose the case at the ICJ in 1962?
The ICJ majority decision of 9 to 3, which gave the Temple to Cambodia, was based on the arguments that the French map, although partially inconsistent with the watershed principle, had been accepted by Thailand. When the map was presented to Thailand in 1908, Thai officials failed repeatedly to reject the map when they had many opportunities to do so. In fact, the map was actually used by Thailand on numerous occasions. It was noted that when the French minister in Bangkok presented the map to Prince Damrong, Thailand’s minister of interior at the time, he thanked the French minister and asked for fifteen more copies to give to Thai provincial governors. This was seen by the ICJ as Thailand’s tacit consent or acquiescent to Cambodian sovereignty over the Temple.
In addition to that, in 1930, Prince Damrong, by then a former Thai interior minister, in his quasi-official capacity as President of the Royal Institute of Siam, was invited to the Temple by the French. While at the Temple, he was treated as an honoured guest by the French Resident, with the French flag proudly flying in the vicinity of the Temple. Prince Damrong’s acceptance of being treated as a guest by the French host at the Temple was seen by the ICJ as further evidence of Thailand’s acceptance of French sovereignty over the Temple.
In sum, these incidents were used by the ICJ to award the Temple to Cambodia, under the principle of estoppel. The ICJ reasoned that Thailand tacitly accepted French/Cambodian sovereignty over the Temple through its own behaviour on several occasions.
Importantly, in its 1962 judgment, the ICJ did not address the question of the sovereignty over the land adjacent to the Temple, thereby creating uncertainty over the ownership of the now controversial 4.6 square kilometres of land adjacent to the Temple. Therein lies the seeds of today’s problem.
Over the course of the last half century since, Thailand has insisted on bilateral negotiations to resolve the issue. This is consistent with the UN Charter which calls on member states to settle their disputes bilaterally, only giving way to regional and then to multilateral forums once bilateral negotiations have been exhausted with no success. Cambodia has seen things differently and brought the problem to the UN Security Council rather prematurely. Cambodian preference for the multilateral arena may reflect its desire to take the problem back to the ICJ.
Let us look at some scenarios that Thailand should be mindful of.
Cambodia would not be able to take Thailand to the ICJ for a new judgment without a new consent from Thailand to be bound by the ICJ since Thailand’s acceptance of the ICJ’s compulsory jurisdiction has expired.
Some have suggested that the ICJ should be asked to review and possibly change its 1962 judgment based on the discovery of new evidence. This would not be possible. The ICJ Statute requires that any new evidence must be presented to the ICJ prior to the expiration of 10 years from the date of judgment, which for this case would mean 1972.
Cambodia could possibly ask the ICJ to interpret its 1962 judgment as to whether the judgment should include sovereignty over the adjacent land. Although possible, it would not be an easy task to convince the ICJ to do so.
There is a potential back door approach for Thailand to be mindful of. Under the UN Charter, the UN Security Council may request the ICJ’s advisory opinion on any legal question.
The ICJ’s opinion in such a case would be strictly advisory and non-binding, but if such an opinion were to be included in a resolution subsequently adopted by the UN Security Council, it would be legally binding on all members. Thailand would be obliged to respect such a resolution, whether to its favour or not.
Now that the UN Security Council has referred the matter back to the regional and bilateral levels, it is important for Thailand to act quickly to implement its commitments made on 22 March in Jakarta to avoid granting another opportunity for this case to be brought back to the UN Security Council for further action.
In diplomacy, one has to consider every move carefully. I recall that back in 2005, history nearly repeated itself but was prevented from doing so because I was mindful of history.
At that time, Cambodian Prime Minister Hun Sen invited then Thai Prime Minister Dr. Thaksin Shinawatra to jointly tour the border area - a tour billed as a friendly outing for the two neighbouring prime ministers, leisurely, relaxing, and with no agreements to be signed.
In the preparatory meetings, the legal significance of the site where the Cambodian prime minister would greet and welcome the Thai prime minister was initially missed by the Thai side, since it was seen as a protocol issue. As foreign minister and mindful of history and the legal consequences of Prince Damrong’s visit to the Temple over one hundred years earlier, I noticed that the greeting site proposed by Cambodia was clearly inside the disputed 4.6 square kilometre area. Under this scenario, the Thai prime minister, in full view for all to see, with cameras, would have been an “honoured guest” of the Cambodian prime minister in the contested area. The principle of estoppel could be used again and Thailand stood to weaken its claim of sovereignty over the adjacent area.
Recognising the significance of this, I instructed my officials to ask the Cambodian side to movethe “meet and greet” site to a place recognised by both countries as clearly within Cambodia. The request was refused. The Cambodians argued that the proposed location would have been the safest spot geographically for the Thai prime minister’s helicopter to land and that any other site would have also been “too far” for the two leaders to return to the Temple area, given time constraints. Consequently, I decided to recommend the cancellation of the border visit.
At first, perhaps looking at it from a non-legal angle, my prime minister did not agree with me, concluding that no harm could come from such a ‘friendly and relaxing’ tour of the border by two neighbouring prime ministers. I did not give up. It was a recommendation that I reiterated tomy prime minister every time I saw him during the following few weeks, making clear that the Cambodian side would make the Thai side feel very welcome, but as an “honoured guest” in the middle of the controversial 4.6 square kilometres’ disputed area. I noted that it would be like “a kiss of death” for the “visiting” Thai prime minister from a very nice “host.” It was perhaps this choice of phrase as well as my perseverance that eventually won over my prime minister. The trip was cancelled just in time. To me, this was preventive
measures at work.
Thailand must now move very carefully and avoid falling into any intentional or unintentional trap. Actions designed to achieve certain goals may end up with opposite
results. International relations should not be used as a tool for domestic political agenda by Thais or Cambodians. Demands from the streets, leading to the exchange of fires across the Thai-Cambodian border earlier this year have already enabled Cambodia to take the case to the UN Security Council. Thailand should not create another opportunity for the case to be taken back to the UN Security Council again.
Published: Friday, April 22, 2011