Escolar Documentos
Profissional Documentos
Cultura Documentos
Thailand)
Author(s): Covey Oliver
Source: The American Journal of International Law, Vol. 56, No. 4 (Oct., 1962), pp. 1033-1053
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2195943 .
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JUDICIAL
BY
DECISIONS
COVEY OLIVER
CONCERNING THE
TEMPLE
OF PREAH
VIHEAR
(CAMBODIA
V.
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Vihear itself,wherethe main Temple buildings stand in the apex of a triangular piece of high groundjutting out into the plain. From the edge of
the escarpment,the general inclinationof the ground in the northerlydirectionis downwardsto the Nam Moun river,whichis in Thailand.
It will be apparent fromthe descriptionjust given that a frontierline
whichran along the edge of the escarpment,or whichat any rate ran to the
south and east of the Temple area, would leave this area in Thailand;
whereasa line runningto the north,or to the northand west,would place
it in Cambodia.
Thailand has urged that the edge of this escarpmentconstitutesthe natural and obviousline for a frontierin this region. In support of this view
Thailand has referredto the documentaryevidenceindicativeof the desire
of the Parties to establish frontierswhich would not only be "natural",
but visible and unmistakable-such as rivers,mountainranges, and hence
escarpments,wheretheyexist.
The desire of the Parties for a natural and visible frontiercould have
been metby almostany line whichfolloweda recognizablecourse along the
main chain of the Dangrek range. It could have been a crestline, a watershed line or an escarpmentline (wherean escarpmentexisted,whichwas far
fromalways being the case). As will be seen presently,the Parties provided for a watershedline. In so doing, they must be presumedto have
realized that such a line would not necessarily,in any particular locality,
be the same line as the line of the crestor escarpment. They cannot therefore be presumedto have intendedthat, whereveran escarpmentexisted,
the frontiermustlie along it, irrespectiveof all otherconsiderations.
The Parties have also relied on otherargumentsof a physical,historical,
religious and archaeological character,but the Court is unable to regard
themas legally decisive.
As concernsthe burden of proof, it must be pointed out that though,
fromthe formalstandpoint,Cambodia is the plaintiff,having institutedthe
proceedings,Thailand also is a claimant because of the claim which was
presentedby her in the second Submission of the Counter-Memorialand
which relates to the sovereigntyover the same piece of territory. Both
Cambodia and Thailand base theirrespectiveclaims on a series of facts and
contentionswhich are asserted or put forwardby one Party or the other.
The burden of proof in respect of these will of course lie on the Party assertingor puttingthem forward.
Until Cambodia attained her independence in 1953 she was part of
French Indo-China, and her foreign relations-like those of the rest of
French Indo-China-were conductedby France as the protectingPower.
It is commonground betweenthe Parties that the present dispute has its
fonset origoin the boundary settlementsmade in the period 1904-1908,
betweenFrance and Siam (as Thailand was then called) and, in particular,
that the sovereigntyover Preah Vihear depends upon a boundary treaty
dated 13 February 1904, and upon events subsequent to that date. The
Court is thereforenot called upon to go into the situation that existed
betweenthe Parties prior to the Treaty of 1904.
1962]
JUDICIAL
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1035
The relevantprovisionsof the Treaty of 13 February 1904, which regulated interalia the frontierin the easternDangrek region,were as follows:
[Translationr
by the Registry]
"Article 1
The frontierbetweenSiam and Cambodia starts,on the left shore of
the Great Lake, fromthe mouthof the river Stung Roluos, it follows
the parallel fromthat point in an easterlydirectionuntil it meetsthe
river Prek Kompong Tiam, then,turningnorthwards,it mergeswith
the meridian fromthat meeting-pointas far as the Pnom Dang Rek
mountain chain. From there it follows the watershed between the
basins of the Nam Sen and the Mekong,on the one hand, and the Nam
Moun,on the otherhand, and joins the Pnom Padang chain the crestof
whichit followseastwardsas far as the Mekong. Upstreamfromthat
point, the Mekong remains the frontierof the Kingdom of Siam, in
accordancewith Article 1 of the Treaty of 3 October1893."
"Article 3
There shall be a delimitationof the frontiersbetweenthe Kingdom
of Siam and the territoriesmaking up French Indo-China. This delimitationwill be carried out by Mixed Commissionscomposedof officers appointed by the two contractingcountries. The work will relate
to the frontierdeterminedby Articles 1 and 2, and the region lying
betweenthe Great Lake and the sea."
It will be seen, in the firstplace, that these articlesmake no mentionof
Preah Vihear as such. It is for this reason that the Court can only give a
decision as to the sovereigntyover the Temple area after having examined
what the frontierline is. Secondly,whereas the general characterof the
frontierestablishedby Article 1 was, along the Dangrek range, to be a
watershedline, the exact course of this frontierwas, by virtue of Article 3,
to be delimited by a Franco-Siamese Mixed Commission. It is to be
observed,moreover,that what had to be delimitedwas "the frontiers"between Siam and French Indo-China; and although this delimitationhad,
prima facie, to be carried out by referenceto the criterionindicated in
Article 1, the purpose of it was to establishthe actual line of the frontier.
In consequence,the line of the frontierwould, to all intentsand purposes,
be the line resultingfromthe work of delimitation,unless the delimitation
were shownto be invalid.
In due course, a Mixed Commissioncomposed of French and Siamese
memberswas set up, charged with the task of delimitingthe frontierin
various districts,including the eastern sector of the Dangrek range in
whichPreah Vihear is situated. This Mixed Commissionwas composedof
two sections,one French and one Siamese, sittingtogether-one consisting
of French topographicaland administrativeofficers
under a French president,and the otherof Siamese membersunder a Siamese president. So far
as the frontierin the Dangrek range was concerned,the task of this Mixed
Commissionwas confinedto the easternsector (roughlyeast of the Pass of
Kel) in whichPreah Vihear is situated. At this timethe westernsectorof
the Dangrek lay whollyin Thailand. It was only when a furtherboundary
under a treatydated 23 March 1907, broughtwithinCambodia
settlement,
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extending to Preah Vihear) already mentioned,and thereforethe presumptionmustbe that it had already been done.
The First Mixed Commissionapparentlydid not hold any formalmeeting after 19 January 1907. It must not be forgottenthat, at the time
when such a meetingmighthave been held for the purpose of windingup
theworkof the Commission,attentionin bothcountries,on the part of those
who were specially qualifiedto act and speak on theirbehalf in these matters,was directedtowardsthe conclusionof the Treaty of 23 March 1907.
Their chief concern,particularly in the case of Colonel Bernard, could
hardly have been the formal completionof the results of the delimitation
theyhad carriedout.
The finalstage of the operationof delimitationwas the preparationand
publicationof maps. For the executionof this technicalwork,the Siamese
Government,which at that time did not dispose of adequate means, had
officiallyrequested that French topographical officersshould map the
-frontier
region. It is clear fromthe openingparagraph of the minutesof
the meetingof the First Mixed Commissionon 29 November1905 that this
request had the approval of the Siamese sectionof the Commission,which
may indeed have inspired it, for in the letterof 20 August 1908 in which
the Siamese Ministerin Paris communicatedto his Governmentthe eventual
resultsof this work of mapping,he referredto "the Mixed Commissionof
Delimitationof the frontiersand the Siamese Commissioners'request that
the French Commissionersprepare maps of various frontiers". That this
was the deliberatepolicy of the Siamese authoritiesis also shown by the
fact that in the Second (1907) Mixed Commission,the French membersof
the Commissionwere equally requestedby theirSiamese colleaguesto carry
out cartographicalwork,as can be seen fromthe minutesof the meetingof
6 June 1908.
The French Governmentduly arrangedforthe workto be done by a team
threeof whom,Captains Tixier,Kerler and de Batz,
of fourFrench officers,
had been membersof the First Mixed Commission.This team workedunder
the general directionof Colonel Bernard,and in the late autumnof 1907 it
completeda series of elevenmaps coveringa large part of the frontiersbetween Siam and French Indo-China,includingthose portionsthat are material in the present case. The maps were printed and published by a
well-knownFrench cartographicalfirm,H. Barrere.
The eleven maps were in due course communicatedto the Siamese Government,as beingthe maps requestedby the latter,and the Court will consider later the circumstancesof that communicationand the deductionsto
be drawn fromit. Three of the maps had been overtakenby events,inasmuch as the formerfrontierareas theyshowedhad, by virtueof the Treaty
of March 1907, now become situated wholly in Cambodia. Siam was not
thereforecalled upon eitherto accept or reject them. Her interestin the
othermaps romained. Amongstthesewas one of that part of the Dangrek
range in whichthe Temple is situated,and on it was traced a frontierline
purportingto be the outcomeof the work of delimitationand showingthe
whole Preah Vihear promontory,with the Temple area, as being on the
1962]
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1040
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in possessionof Preah Vihear; thereforeshe had no need to raise the matter. She indeed instancesher acts on the groundas evidencethat she never
accepted the Annex I line at Preah Vihear at all, and contendsthat if she
never accepted it she clearly had no need to repudiate it, and that no adverse conclusionscan be drawn fromher failureto do so. The acceptability
of this explanationmust obviouslydepend on whetherin fact it is the case
that Thailand's conducton the ground affordsex post facto evidence sufficient to show that she never accepted the Annex I line in 1908 in respect
of Preah Vihear, and consideredherselfat all material times to have the
sovereigntyover the Temple area.
The Court has consideredthe evidencefurnishedby Thailand of acts of
an administrativecharacter performedby her officialsat or relative to
Preah Vihear. France, and subsequentlyCambodia, in view of her title
foundedon the Treaty of 1904, performedonly a very few routineacts of
administrationin this small, desertedarea. It was specificallyadmittedby
Thailand in the course of the oral hearingthat if Cambodia acquired sovereigntyoverthe Temple area by virtueof the frontiersettlementof 1904, she
did not subsequentlyabandon it, nor did Thailand subsequentlyobtain it
by any process of acquisitive prescription. Thailand's acts on the ground
were thereforeput forwardas evidence of conduct as sovereign,sufficient
to negativeany suggestionthat,under the 1904 Treaty settlement,Thailand
accepted a delimitationhavingthe effectof attributingthe sovereigntyover
Preah Vihear to Cambodia. It is thereforefromthis standpointthat the
Court must considerand evaluate these acts. The real questionis whether
to effaceor cancel out the clear impressionof acceptanceof the
theysufficed
frontierline at Preah Vihear to be derivedfromthe various considerations
already discussed.
With one or two importantexceptionsto be mentionedpresently,the acts
concernedwere exclusivelythe acts of local, provincial,authorities. To the
extentthattheseactivitiestookplace, it is not clear that theyhad reference
to the summitof Mount Preah Vihear and the Temple area itself,rather
than to places somewherein the vicinity. But howeverthat may be, the
to regardsuch local acts as overridingand negativing
Courtfindsit difficult
the consistentand undeviatingattitude of the central Siamese authorities
to the frontierline as mapped.
In this connection,much the most significantepisode consisted of the
visit paid to the Temple in 1930 by Prince Damrong,formerlyMinisterof
the Interior,and at this time President of the Royal Institute of Siam,
charged with duties in connectionwith the National Library and with
archaeological monuments. The visit was part of an archaeological tour
made by the Prince withthe permissionof the King of Siam, and it clearly
character. When the Prince arrived at Preah Vihear,
had a quasi-official
received there by the French Resident for the adjoining
he was officially
Cambodian province,on behalf of the Resident Superior,with the French
flag flying. The Prince could not possibly have failed to see the implicaof title on the
tions of a receptionof this character. A clearer affirmation
French Indo-Chineseside can scarcely be imagined. It demanded a reac-
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troops had been suspended in order not to aggravate the situation. The
Note went on to ask that Thailand should either withdrawher troops or
furnishCambodiawithher views on the matter. This Note equally received
no reply. But the Thai "troops" (the Court understandsthat they are in
fact a police force) remained. Again, therefore,it would seem that Thailand, while taking certain local action, was not prepared to deny the
French and Cambodian claim at the diplomaticlevel.
No furtherdiplomatic correspondencewas produced to the Court; but
eventually,in 1958, a conferencewas held at Bangkok between Thailand
and Cambodia,to discuss various territorialmattersin dispute betweenthe
Parties, includingthat of Preah Vihear. The representativeof Thailand
having declinedto discuss the legal aspects of the matter,the negotiations
broke down and Cambodia institutedthe presentproceedings.
The Courtwill now state the conclusionsit draws fromthe facts as above
set out.
Even if therewere any doubt as to Siam's acceptanceof the map in 1908,
and henceof the frontierindicatedthereon,the Court would consider,in the
light of the subsequentcourseof events,that Thailand is now precludedby
her conductfromassertingthat she did not accept it. She has, for fifty
years,enjoyed such benefitsas the Treaty of 1904 conferredon her, if only
the benefitof a stable frontier. France, and throughher Cambodia, relied
on Thailand's acceptance of the map. Since neitherside can plead error,
it is immaterialwhetheror not this reliance was based on a belief that the
map was correct. It is not now open to Thailand, while continuingto claim
and enjoy the benefitsof the settlement,to deny that she was ever a
consentingparty to it.
The Court howeverconsidersthat Thailand in 1908-1909 did accept the
Annex I map as representingthe outcomeof the work of delimitation,and
hence recognizedthe line on that map as being the frontierline, the effect
of which is to situate Preah Vihear in Cambodian territory. The Court
considersfurtherthat,looked at as a whole,Thailand's subsequentconduct
confirmsand bears out her original acceptance, and that Thailand's acts
on the ground do not sufficeto negative this. Both Parties, by their conduct, recognizedthe line and therebyin effectagreed to regard it as being
the frontierline.
The Court must now considertwo furthermatters. Thailand contends
that since 1908, and at any rate up to her own 1934-1935 survey,she believed that the map line and watershedline coincided,and thereforethat
if she accepted the map line, she did so only in that belief. It is evident
that such a contentionwould be quite inconsistentwith Thailand's equally
stronglyadvanced contentionthat theseacts in the concreteexerciseof sovereigntyevidenced her belief that she had sovereigntyover the Temple
area: forif Thailand was trulyunder a misapprehensionabout the Annex I
line-if she reallybelievedit indicatedthe correctwatershedline- thenshe
must have believed that, on the basis of the map and her acceptance of it,
the Temple area lay rightfullyin Cambodia. If she had such a belief-and
such a belief is implicit in any plea that she had accepted the Annex I
1962]
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map only because she thoughtit was correct-then her acts on the ground
would have to be regardedas deliberateviolationsof the sovereigntywhich
(on the basis of the assumptionsabove stated) she must be presumed to
have thoughtCambodia to possess. The conclusionis that Thailand cannot
allege that she was under any misapprehensionin accepting the Annex I
line, forthis is whollyinconsistentwiththe reason she gives for her acts on
the ground,namelythat she believed herselfto possess sovereigntyin this
area.
It may be added that even if Thailand's plea of misapprehensioncould,
in principle,be accepted,it should have been advanced shortlyafter Thailand's own survey of the disputed region was carried out in 1934-1935.
Since then Thailand could not have been under any misapprehension.
There is finallyone furtheraspect of the case with whichthe Court feels
it necessaryto deal. The Court considersthat the acceptance of the Annex
I map by the Parties caused the map to enterthe treatysettlementand to
becomean integralpart of it. It cannot be said that this process involved
a departurefrom,and even a violationof, the termsof the Treaty of 1904,
whereverthe map line divergedfromthe line of the watershed,for,as the
Court sees the matter,the map (whetherin all respectsaccurate by reference to the true watershedline or not) was accepted by the Parties in 1908
and thereafteras constitutingthe result of the interpretationgiven by the
two Governmentsto the delimitationwhich the Treaty itselfrequired. In
otherwords,the Parties at that timeadopted an interpretationof the treaty
settlementwhich caused the map line, in so far as it may have departed
fromthe line of the watershed,to prevail over the relevant clause of the
treaty. Even if, however,the Court were called upon to deal with the
it considersthat
matternow as one solelyof ordinarytreatyinterpretation,
to be givenwould be the same,forthe followingreasons.
the interpretation
In general,when two countriesestablisha frontierbetweenthem,one of
the primaryobjects is to achieve stabilityand finality. This is impossible
if the line so establishedcan, at any moment,and on the basis of a continuously available process, be called in question, and its rectification
claimed,wheneverany inaccuracy by referenceto a clause in the parent
treatyis discovered. Such a processcould continueindefinitely,
and finality
would never be reached so long as possible errorsstill remainedto be discovered. Such a frontier,so far frombeing stable, would be completely
precarious. It must be asked why the Parties in this case provided for a
delimitation,instead of relying on the Treaty clause indicating that the
frontierline in this region would be the watershed. There are boundary
treatieswhichdo no morethan referto a watershedline, or to a crestline,
and whichmake no provisionforany delimitationin addition. The Parties
in the present case must have had a reason for taking this furtherstep.
This could only have been because theyregarded a watershedindicationas
insufficient
by itself to achieve certaintyand finality. It is precisely to
achieve this that delimitationsand map lines are resortedto.
Various factorssupport the view that the primaryobject of the Parties
in the frontiersettlementsof 1904-1908 was to achieve certaintyand fi-
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nality. From the evidence furnishedto the Court, and from the statementsof the Parties themselves,it is clear that the whole questionof Siam's
very long frontierswith French Indo-China had, in the period prior to
1904, been a cause of uncertainty,trouble and friction,engenderingwhat
was describedin one contemporarydocumentplaced beforethe Court as a
state of "growing tension" in the relations between Siam and France.
The Court thinksit legitimateto conclude that an important,not to say a
paramount object of the settlementsof the 1904-1908 period (which
broughtabout a comprehensiveregulationof all outstandingfrontierquestions betweenthe two countries),was to put an end to this state of tension
and to achieve frontierstabilityon a basis of certaintyand finality.
In the Franco-Siamese Boundary Treaty of 23 March 1907, the Parties
recitedin the preamblethat theywere desirous"of ensuringthe finalregulation of all questionsrelatingto the commonfrontiersof Indo-China and
Siam". A furthertokenof the same object is to be found in the desire,of
which the documentationcontains ample evidence,and which was evinced
by both Parties, for natural and visible frontiers. Even if, as the Court
stated earlier, this is not in itself a reason for holding that the frontier
must follow a natural and visible line, it does support the view that the
Parties wanted certaintyand finalityby means of natural and visible lines.
The same view is stronglysupportedby the Parties' attitude over frontiers in the 1925 and 1937 Treaties. By specificallyexcluding frontiers
fromthe process of revisionof previous treaties,which the 1925 and 1937
Treaties otherwiseeffected,the Parties bore witnessto the paramountimportancetheyattachedto finalityin this field. Their attitudein 1925 and
1937 can properlybe taken as evidencethat theyequally desired finalityin
the 1904-1908period.
The indication of the line of the watershed in Article 1 of the 1904
Treatywas itselfno morethan an obviousand convenientway of describing
a frontierline objectively,thoughin general terms. There is, however,no
reason to thinkthat the Parties attached any special importanceto the line
of the watershedas such, as comparedwith the overridingimportance,in
the interestsof finality,of adheringto the map line as eventuallydelimited
and as accepted by them. The Court,therefore,feels bound,as a matterof
to pronouncein favour of the line as mapped in the
treatyinterpretation,
disputedarea.
Given the groundson which the Court bases its decision,it becomesunnecessaryto considerwhether,at Preah Vihear, the line as mapped does in
fact correspondto the true watershedline in this vicinity,or did so correspondin 1904-1908,or, if not,how the watershedline in fact runs.
Referringfinallyto the Submissionspresented at the end of the oral
proceedings,the Court, for the reasons indicated at the beginningof the
presentJudgment,findsthat Cambodia's firstand second Submissions,callon the legal status of the Annex I map and on the
ing forpronouncements
line
in
the
frontier
disputed region,can be entertainedonly to the extent
that they give expressionto grounds,and not as claims to be dealt with in
the operativeprovisionsof the Judgment. It findson the otherhand that
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[Concurring in the result, Judges Alfaro and Fitzmaurice gave individual opinions. Judge Alfaro discussed at lengththe principleof "estoppel" or "preclusion" "that a State party to an internationallitigationis
bound by its previous acts or attitudewhen they are in contradictionwith
its claims in the litigation." Pointing out the differenceof this principle
fromthe Anglo-Americanlaw of estoppel,he declared that "Its purpose is
always the same: a State must not be permittedto benefitby its own inconsistencyto the prejudice of another State," and said: "Failure of a
State to assert its right when that right is openly challenged by another
State can onlymean abandonmentto [of] that right." Judge Fitzmaurice
wished to discuss certainpoints of the case morefully.
In his dissentingopinion Judge Moreno Quintana held the treaty text
more importantthan maps, that the interpretationof the treatycalled for
a watershedboundary,and that the watershedfollowedthe edge of the cliff
of the promontory
on whichthe Temple is situated,thus placing the Temple
in Thailand. Judge Wellington Koo's dissentingopinion concluded that
the "Annex map" did not have the characterof an internationalagreement; that Thailand's conductdid not show acquiescence in any line placing the Temple in Cambodia; that there was no ground to hold Thailand
accountableforacquiescenceor for the application of the idea of preclusion
or estoppel; urged that independentexpertsshould have found the actual
watershed,and concludedthat he could not reach a satisfactoryconclusion
as to the exact boundary withoutknowingthe answers to technical questions concerningthe watershed line in the disputed area. Sir Percy
Spender gave a lengthydissentingopinionin whichhe found no agreement
to deviate fromthe treatyline of the watershed,and that the Annex I map
did not in the vicinityof the Temple indicate the real agreementof the
parties, although neither France nor Thailand was aware of this discrepancy until long after the map was published. He did not find any
basis for holdingthat acquiescence had precluded Thailand fromasserting
the true treaty-boundary
line. He stated:
There is however,in my view,no foundationin internationallaw for
the propositionthat an act of recognitionby a State of or acquiescence
by a State in a situation of fact or law is a unilateral juridical act
which, operating of its own force, has the legal consequence of precluding a party giving or making it from thereafterchallengingthe
situationwhich is the subject of recognitionor acquiescence.
The principleof preclusionis a beneficientand powerfulinstrument
of substantiveinternationallaw. Based as it is upon the necessityfor
good faith betweenStates in theirrelationsone with another,it is not
to be hedgedin by artificialrules. It should not howeverbe permitted
to becomeso indefiniteas to acquire the somewhatformlesscontentof
a maxim. And since the principle,when it is applicable to any given
set of facts,substitutesrelative truth for the judicial search for the
truth,it should be applied with caution.
In my opinion the principle operates to preventa State contesting
beforethe Court a situationcontraryto a clear and unequivocal representationpreviouslymade by it to another State, either expresslyor
impliedly,on whichrepresentationthe otherState was, in the circumstances,entitledto rely and in fact did rely,and as a result that other
State has been prejudiced or the State making it has secured some
benefitor advantage for itself.
Unless the elementsso stated can, in any particular case, be shown
to exist,the principle has no application.
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1053