The Bangkok Post
Tuesday July 22, 2008
WILLIAM ROTH
From the daily reporting of the current dispute involving the Preah Vihear temple, it would be difficult, if not impossible, for the average reader to discern what the ''true'' facts are. Various factions on both sides of the border, official and unofficial alike, make conflicting assertions regarding the issues, and the fires of nationalism are being stoked for what seem like clearly political purposes.
Tensions are, understandably, rising and the risk of physical confrontation increases by the day.
It is with these concerns in mind that the following analysis is offered, in the hope that it might shed fresh light on the situation and contribute to a solution beneficial to both countries.
There are three distinct aspects to the current impasse at the Preah Vihear temple: the Legal, the Political, and the Practical.
The Legal
In 1959, Cambodia brought the issue of the sovereignty of the temple to the International Court of Justice (ICJ). In its Application, Cambodia expressly requested the Court ''to adjudge and declare... that the territorial sovereignty over the Temple of Preah Vihear belongs to the Kingdom of Cambodia''.
Since that was what was requested in the initial Application, that was the issue on which the Court rendered its final judgement on June 15, 1962: ''The Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia.''
In retrospect, at least for Cambodia, its initial request in 1959 turned out to be too limited in scope. The Court, in deciding the case, fully adopted Cambodia's assertion that Thailand had in fact accepted the boundary in the area of the temple as marked on a map prepared by the French in 1907. While Cambodia tried, shortly before the Court's judgement in 1962, to modify its claim to ''adjudge and declare that the frontier line between Cambodia and Thailand, in the disputed region in the neighbourhood of the Temple of Preah Vihear, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (Annex 1 to the Memorial of Cambodia),'' Thailand rightly objected on the basis that ''the claim to a region 'in the neighbourhood of the temple of Phra Viharn' constitutes an enlargement of the claim presented by the Government of Cambodia in the Application instituting these proceedings and throughout the written pleadings.''
However, from the Court's opinion (the full text of which can be found at http://www.icj-cij.org/docket/files/45/4871.pdf), it appears inescapable that the Court would have awarded the surrounding land, ''in the neighbourhood of the temple of Phra Viharn,'' to Cambodia had Cambodia so framed the request in its initial Application.
Indeed, in discussing Thailand's claim that the boundary in the area was intended to be the watershed line, the Court said that there is ''no reason to think that the Parties attached any special importance to the line of the watershed as such, as compared with the overriding importance, in the interests of finality, of adhering to the map line as eventually delimited and as accepted by them. The Court, therefore, feels bound, as a matter of treaty interpretation, to pronounce in favour of the line as mapped in the disputed area.''
It is upon this basis that Cambodia, today, claims the so-called ''disputed area'' (often also referred to as ''the 4.6-sqkm overlapping zone''), whereas Thailand relies upon the technically narrow judgement of the Court that only thing legally binding on Thailand under international law is that ''the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia''.
The Political
From the outset of the filing of the case with the ICJ, the Thai government tenaciously fought back with every conceivable argument. Its main contention _ a good one _ was that it was the original intention of the parties in 1904, when a Commission was tasked with delimiting the border between then French Indo-China and Siam, that the border along the area of the Dangrek Range where the temple sits should be the ''watershed line,'' arguably putting the temple within Thailand.
Moreover, on a more emotional level for the Thai people, when approaching the area of the temple from the Thai side, it seems visually impossible to think that the temple and its immediate surrounding area could possibly be in Cambodia! The temple appears to be a natural continuation of the landscape of Thailand, after which there is a precipitous and very dramatic vertical drop into what is concededly Cambodian territory. As a result, access to the temple is usually made from Thailand, while access from Cambodia _ at least up to the present time _ requires an arduous uphill climb.
There is no question that Thailand felt, and still strongly feels, that the 1962 decision of the ICJ was wrong and that the Thai people were flat-out ''robbed'' of what was rightly theirs.
This understandable feeling of hurt and dismay is by no means lessened _ and indeed must be exacerbated _ by the reasons the Court found in favour of Cambodia. To put it bluntly, if somewhat crudely, the Thai government repeatedly botched this matter from 1907 to 1959.
From the Court's meticulous and careful recitation of the facts, it is clear that over the years there were numerous opportunities for Thailand to rectify or ''fix'' the matter in Thailand's favour, but on each occasion the opportunities were either ignored or missed entirely.
These facts amply support the Court's conclusion that the Thai government, by its own conduct, implicitly had accepted the Annex I map as accurately marking the border with Cambodia.
Nonetheless, from Thailand's perspective today, the temple and the surrounding area all should have belonged to it, and the current effort to assert sovereignty over the ''disputed area'' adjacent to the temple is based on an understandable desire to retain as much land in the area as it possibly can.
By contrast, the Cambodians are justly proud that a magnificently located temple, built by their Khmer ancestors, is recognised not only as being in Cambodian territory, but is now a World Heritage Site!
Needless to say, on maps published by Cambodia, the border with Thailand is in conformity with the Annex I map relied upon by the ICJ, making the temple and the surrounding ''disputed area'' clearly Cambodian territory.
The Practical
From the above discussion it should be plain that both sides, Cambodia and Thailand, have understandable, and indeed strong, ''claims'' to the disputed area.
And that is precisely the problem.
The current fight over this area is being waged on the basis of ''sovereignty'': the disputed area is either Cambodian or Thai, allowing no room for compromise.
Cambodia undoubtedly feels that, from a legal standpoint, if the case involving the disputed area were once again to go before the ICJ, Cambodia would win.
The Thai government most likely thinks the same thing, and so, politically, it will never agree to such a venue (''once burned, twice shy!'').
(In 1959, Cambodia was able to bring Thailand to the ICJ because, in 1950, Thailand had accepted the Court's jurisdiction for a period of 10 years. That acceptance has not been renewed, and so without Thailand's express consent, Cambodia today cannot force Thailand to have the ICJ adjudicate the current boundary dispute.)
However, the disputed area surrounding the temple itself also contains related Khmer artefacts, and in administering the temple, particularly as a World Heritage site, the entire area (perhaps even beyond the ''disputed area'') should be administered as a single entity. Indeed, the World Heritage listing provides both countries with an excellent opportunity for increased tourism and accompanying revenue.
But so long as the two countries remain at loggerheads over the sovereignty issue of the disputed area, progress on joint administration of the entire area most likely will be difficult and lengthy.
As a result, not only will Thailand lose the opportunity to reap the obvious immediate benefits of being the only viable gateway to a new World Heritage Site (access from Thailand currently is denied because of the ''tensions''), but these delays in administering the site are giving the Cambodians time to develop their own competing tourist infrastructure _ including plans to provide easier access to the temple from Cambodia itself.
Rather than continue arguing endlessly about which country owns the disputed area, a much better approach would be for both countries to immediately agree that it is something akin to an ''international peace park,'' with neither side claiming ''sovereignty''.
Instead, a joint commission could be established to provide security in the disputed area, and, in close cooperation with the World Heritage Committee, provide overall administration for a larger area reasonably related to the temple compound.
In this way both countries could immediately begin to benefit from a site which, historically, has been considered sacred to the people on both sides and one without borders.
William Roth teaches International Law at Chulalongkorn University. He visited the temple in 2001.
Tuesday July 22, 2008
WILLIAM ROTH
From the daily reporting of the current dispute involving the Preah Vihear temple, it would be difficult, if not impossible, for the average reader to discern what the ''true'' facts are. Various factions on both sides of the border, official and unofficial alike, make conflicting assertions regarding the issues, and the fires of nationalism are being stoked for what seem like clearly political purposes.
Tensions are, understandably, rising and the risk of physical confrontation increases by the day.
It is with these concerns in mind that the following analysis is offered, in the hope that it might shed fresh light on the situation and contribute to a solution beneficial to both countries.
There are three distinct aspects to the current impasse at the Preah Vihear temple: the Legal, the Political, and the Practical.
The Legal
In 1959, Cambodia brought the issue of the sovereignty of the temple to the International Court of Justice (ICJ). In its Application, Cambodia expressly requested the Court ''to adjudge and declare... that the territorial sovereignty over the Temple of Preah Vihear belongs to the Kingdom of Cambodia''.
Since that was what was requested in the initial Application, that was the issue on which the Court rendered its final judgement on June 15, 1962: ''The Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia.''
In retrospect, at least for Cambodia, its initial request in 1959 turned out to be too limited in scope. The Court, in deciding the case, fully adopted Cambodia's assertion that Thailand had in fact accepted the boundary in the area of the temple as marked on a map prepared by the French in 1907. While Cambodia tried, shortly before the Court's judgement in 1962, to modify its claim to ''adjudge and declare that the frontier line between Cambodia and Thailand, in the disputed region in the neighbourhood of the Temple of Preah Vihear, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (Annex 1 to the Memorial of Cambodia),'' Thailand rightly objected on the basis that ''the claim to a region 'in the neighbourhood of the temple of Phra Viharn' constitutes an enlargement of the claim presented by the Government of Cambodia in the Application instituting these proceedings and throughout the written pleadings.''
However, from the Court's opinion (the full text of which can be found at http://www.icj-cij.org/docket/files/45/4871.pdf), it appears inescapable that the Court would have awarded the surrounding land, ''in the neighbourhood of the temple of Phra Viharn,'' to Cambodia had Cambodia so framed the request in its initial Application.
Indeed, in discussing Thailand's claim that the boundary in the area was intended to be the watershed line, the Court said that there is ''no reason to think that the Parties attached any special importance to the line of the watershed as such, as compared with the overriding importance, in the interests of finality, of adhering to the map line as eventually delimited and as accepted by them. The Court, therefore, feels bound, as a matter of treaty interpretation, to pronounce in favour of the line as mapped in the disputed area.''
It is upon this basis that Cambodia, today, claims the so-called ''disputed area'' (often also referred to as ''the 4.6-sqkm overlapping zone''), whereas Thailand relies upon the technically narrow judgement of the Court that only thing legally binding on Thailand under international law is that ''the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia''.
The Political
From the outset of the filing of the case with the ICJ, the Thai government tenaciously fought back with every conceivable argument. Its main contention _ a good one _ was that it was the original intention of the parties in 1904, when a Commission was tasked with delimiting the border between then French Indo-China and Siam, that the border along the area of the Dangrek Range where the temple sits should be the ''watershed line,'' arguably putting the temple within Thailand.
Moreover, on a more emotional level for the Thai people, when approaching the area of the temple from the Thai side, it seems visually impossible to think that the temple and its immediate surrounding area could possibly be in Cambodia! The temple appears to be a natural continuation of the landscape of Thailand, after which there is a precipitous and very dramatic vertical drop into what is concededly Cambodian territory. As a result, access to the temple is usually made from Thailand, while access from Cambodia _ at least up to the present time _ requires an arduous uphill climb.
There is no question that Thailand felt, and still strongly feels, that the 1962 decision of the ICJ was wrong and that the Thai people were flat-out ''robbed'' of what was rightly theirs.
This understandable feeling of hurt and dismay is by no means lessened _ and indeed must be exacerbated _ by the reasons the Court found in favour of Cambodia. To put it bluntly, if somewhat crudely, the Thai government repeatedly botched this matter from 1907 to 1959.
From the Court's meticulous and careful recitation of the facts, it is clear that over the years there were numerous opportunities for Thailand to rectify or ''fix'' the matter in Thailand's favour, but on each occasion the opportunities were either ignored or missed entirely.
These facts amply support the Court's conclusion that the Thai government, by its own conduct, implicitly had accepted the Annex I map as accurately marking the border with Cambodia.
Nonetheless, from Thailand's perspective today, the temple and the surrounding area all should have belonged to it, and the current effort to assert sovereignty over the ''disputed area'' adjacent to the temple is based on an understandable desire to retain as much land in the area as it possibly can.
By contrast, the Cambodians are justly proud that a magnificently located temple, built by their Khmer ancestors, is recognised not only as being in Cambodian territory, but is now a World Heritage Site!
Needless to say, on maps published by Cambodia, the border with Thailand is in conformity with the Annex I map relied upon by the ICJ, making the temple and the surrounding ''disputed area'' clearly Cambodian territory.
The Practical
From the above discussion it should be plain that both sides, Cambodia and Thailand, have understandable, and indeed strong, ''claims'' to the disputed area.
And that is precisely the problem.
The current fight over this area is being waged on the basis of ''sovereignty'': the disputed area is either Cambodian or Thai, allowing no room for compromise.
Cambodia undoubtedly feels that, from a legal standpoint, if the case involving the disputed area were once again to go before the ICJ, Cambodia would win.
The Thai government most likely thinks the same thing, and so, politically, it will never agree to such a venue (''once burned, twice shy!'').
(In 1959, Cambodia was able to bring Thailand to the ICJ because, in 1950, Thailand had accepted the Court's jurisdiction for a period of 10 years. That acceptance has not been renewed, and so without Thailand's express consent, Cambodia today cannot force Thailand to have the ICJ adjudicate the current boundary dispute.)
However, the disputed area surrounding the temple itself also contains related Khmer artefacts, and in administering the temple, particularly as a World Heritage site, the entire area (perhaps even beyond the ''disputed area'') should be administered as a single entity. Indeed, the World Heritage listing provides both countries with an excellent opportunity for increased tourism and accompanying revenue.
But so long as the two countries remain at loggerheads over the sovereignty issue of the disputed area, progress on joint administration of the entire area most likely will be difficult and lengthy.
As a result, not only will Thailand lose the opportunity to reap the obvious immediate benefits of being the only viable gateway to a new World Heritage Site (access from Thailand currently is denied because of the ''tensions''), but these delays in administering the site are giving the Cambodians time to develop their own competing tourist infrastructure _ including plans to provide easier access to the temple from Cambodia itself.
Rather than continue arguing endlessly about which country owns the disputed area, a much better approach would be for both countries to immediately agree that it is something akin to an ''international peace park,'' with neither side claiming ''sovereignty''.
Instead, a joint commission could be established to provide security in the disputed area, and, in close cooperation with the World Heritage Committee, provide overall administration for a larger area reasonably related to the temple compound.
In this way both countries could immediately begin to benefit from a site which, historically, has been considered sacred to the people on both sides and one without borders.
William Roth teaches International Law at Chulalongkorn University. He visited the temple in 2001.
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