Wednesday, 11 May 2011

OPINION: International Court of Justice To Clarify 1962 Ruling

via CAAI

AKP Phnom Penh, May 10, 2011 – Since the 1962 International Court of Justice judgment, the Temple of Preah Vihear and its vicinity, including the so-called disputed 4.6 square kilometres, have belonged to Cambodia de facto as well as de jure. In accepting the judgment, on 15 July 1962 Thailand removed its flag and withdrew its armed forces from the Temple and its vicinity. The judgment is final and without appeal (Article 60 of ICJ). Thailand declined to file an application for revision within the required ten years from the date of the judgment (Article 61 of ICJ statute).

Thailand’s current claim to 4.6 square kilometres of territory inside Cambodia is based on its secret unilateral map, first revealed in Christchurch in 2007, and not recognised by any other country. In an attempt to establish de facto control over the area around the Temple, on 15 July 2008 Thailand sent its armed forces into that area in defiance of the 1962 ICJ judgment, and in gross violation of the UN Charter and the international rule of law.

In the written ICJ pleadings of 1959, Cambodia rested its claim to sovereignty over the Temple of Preah Vihear upon an express legal title, which was created by the Convention of 13 February 1904 and by the delimitation carried out under the terms of that Convention by a Mixed Commission of Delimitation representing France and Siam.

In 1908 the Mixed Commission published a report of its completed work, in the form of a series of eleven maps delimiting the whole frontier between Siam and Indochina, as provided for in the Convention of 1904. Six of these eleven maps showed the Siamese-Cambodian frontier. One of the six, entitled “Dangrek”, delimited the frontier near Preah Vihear and showed the Temple within Cambodia. This map was attached as Annex I to the Cambodian submission in 1959.

The maps were officially distributed to the members of the Commission and to the two governments. All of them, including the Dangrek map, were received without question or comment by the government of Thailand, and were used by it for over fifty years without any criticism of any sort.

In 1925, Siam and France signed a Treaty of Friendship, Commerce and Navigation in which the parties confirmed their reciprocal respect for the frontiers established between their territories by former agreements. A further treaty in 1937 maintained respect for the border status quo.

In 1935 Thailand made a survey of its own and prepared a map that showed the Temple as being within Thailand. Nevertheless, the Thai government continued from time to time to use the 1908 map until the rise of the controversy in 1958-59.

On 15 June 1962, the Court ruled that Thailand in 1908-09 had accepted the Annex I map as representing the outcome of the work of delimitation, and hence recognised the line on that map as the frontier line, thus situating Preah Vihear in Cambodian territory (ICJ P.31).

The Court decided that both parties, by their conduct, recognised the line and in effect agreed to regard it as the border line. Also the Court considered that the acceptance of the Annex I map by the parties caused the map to become an integral part of the treaty (ICJ P.32).

It also said that Siam and France at that time adopted an interpretation of the treaty which caused the map line, where it may have departed from the watershed, to prevail over the watershed clause of the treaty (ICJ P.32).

There is however, no reason to think that they attached any special importance to the watershed as such, as compared with the map line eventually delimited and accepted by them (ICJ P.33).

Now the line on the Annex I map accepted by the court in 1962 is being contested by Thailand’s own unilateral map. Thailand contends that the court ruled only that the Temple of Preah Vihear belongs to Cambodia but failed to rule about the area around the Temple.

To make it clear that the boundary on the Annex I map is still fully valid, on 28 April Cambodia asked the ICJ for an interpretation of the Court’s 1962 judgment. It is to be hoped that the Court’s response will remove any ambiguities, so that the Thai government cannot continue pretending that there is any legal basis for its present refusal to acknowledge the border it agreed to a century ago.

By Long Sokun
Researcher on the case Concerning the Temple of Preah Vihear

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