The Temple of Preah Vihear Case: Fact vs. Fiction

          According to John Burgess, the author of an excellent 2015 book about Preah Vihear, wrote that the Khmer Empire ruled much of mainland Southeast Asia from the 9th to the 15th centuries. There were numerous large-scale creations, including ancient stone temples throughout the region. But there was an expansion of the Thai and Vietnamese states during the 12th century, and for a long time both the Cambodian and Thai governments have used the Temple of Preah Vihear to promote their domestic and political agendas.

Angkor was the capital for many years of the Khmer Empire, and Angkor Wat was just one of the temples there. Unlike most Khmer temples, however, Preah Vihear was maintained and enlarged by many kings over about 300 years, from the 10th until the 12th century.

The temple is located on the mountain at the border between Thailand and Cambodia. There was a very steep stairway of rocks and stones from Cambodia to the temple, but now, on the Thai side, there is a good road leading to the temple area.

Before 1867, Siam (the original name of Thailand) had expanded to cover a large area of land. However, in 1867 there began some territorial losses for Siam to the French. In 1883, Preah Vihear, which was still considered to be in Siam, was found by a French explorer to be isolated, with no village nearby. In the 1904 Treaty, France gave back Chantaburi province to Siam in exchange for the land west of Luang Phra Bang. In the 1907 Treaty, France gave back Trad province in exchange for Battambang and Siem-Reap.

There was a Franco-Thai War from October 1940 to May 1941, and in June 1941, Victory Monument was built in Bangkok to commemorate the outcome of that war. In 1946, the Thai government of Pridi Banomyong returned the so-called ‘liberated territories’ to the French in return for Thailand not being regarded as an aggressor during World War II. Moreover, the USA, UK, and the Soviet Union dropped all claims against Thailand and Thailand joined United Nations in December 1946.

In 1953, France granted independence to Cambodia, but in 1954 the Thai military occupied the Temple of Preah Vihear. Based on the 1907 French map, Cambodia claimed that the Temple was in its territory, but Thailand rejected the accuracy of the map.

In 1959, Cambodia filed a suit against Thailand at the International Court of Justice (ICJ) regarding the Temple of Preah Vihear. There were 12 (out of the normal 15) judges who heard this case in 1962.

The Treaty of 13 February 1904 regulated, among other things, the frontier in the eastern Dangrek region. According to Article 1 of the Treaty, the watershed was considered as the reference point for the frontier between Siam and Cambodia. But Article 3 stated that there should also be a delimitation of the frontier to be carried out by a Mixed Commission composed of officers appointed by the two contracting countries. In other words, the delimitation was to be done by drawing a line on a map, and this task was completed by the end of 1907. Copies of the map were sent to the Thai government, but, according to the map, the Temple of Preah Vihear was in Cambodia.

Cambodia claimed that the map was an authoritative document. However, Thailand argued that the map was invalid and was not an official document of the Commission. Thailand also asserted that the map violated the principle of the work of the Commission that the frontier should follow the watershed line.

In June 1962, however, the ICJ decided that the Temple was under the sovereignty of Cambodia. According to the ICJ, given the events of 1908 and 1909, Thailand had accepted that the map showed the delimitation which has been done by the Mixed Commission. The ICJ pointed out that some boundary treaties do no more than referring to the watershed line, but the Treaty of 1904 also required delimitation. Additionally, over the next 50 years after the creation of the map, Siam or Thailand never complained about the accuracy of the map. The ICJ referred to the principle of ‘acquiescence’ (he who keeps silent is held to consent). Siam had asked the French to prepare the map and must accept the fact that the map might turn out to be inaccurate. It was then up to Siam to verify the result if it wished to do so, however, the Siamese authorities never did protest or argue that the map was incorrect.

For the 1962 court case, Thailand could have raised the argument that the reason why Siam did not protest during that earlier period of time was because Siam was intimidated by the French. However, the Thai legal team chose not to assert this argument, though the strategy had been urged by Seni Pramot. A Thai researcher has recently pointed out that Asian culture, especially Thai culture, often uses silence as an important communication tool. There may have been a lack of understanding by the Court of Thai communication culture, which is highly non-verbal. It contrasts with the Western communication method, which is more vocal and with an emphasis on the individual objective. By contrast, in Thailand, silence is often used as a form of passive resistance and can be used to express dissatisfaction.

The ICJ also ruled that Thailand was now precluded by its conduct from asserting that Thailand never accepted the map. Thailand had, for 50 years, enjoyed such benefits as the Treaty of 1904 conferred on it, if only the benefit of a stable frontier. France, and through her Cambodia, relied on Thailand’s acceptance of the map. Since neither side can plead error, it was immaterial whether or not this reliance was based on a belief that the map was correct. It was not now open to Thailand, while continuing to claim and enjoy the benefits of the settlement, to deny that it was ever a consenting party to it.

The principle of Estoppel could also apply to this case. This rule operates so as to preclude a party from denying before a tribunal the truth of a statement of fact made previously by that party to another, whereby that other has acted to his detriment OR the party making the statement has secured some benefit. Applying this doctrine to the case, Thailand’s long silence was equivalent to acceptance of the boundary line and, as a result, Thailand could not now assert that they had not accepted the boundary line.

The ICJ decided, by nine votes to three, that the Temple was situated in the territory under the sovereignty of Cambodia and that Thailand was under an obligation to withdraw any military or police forces or other guards or keepers stationed by it at the Temple, or in its vicinity on Cambodian territory.

It presenting its case, however, Thailand had made an inconsistent argument. On the one hand, Thailand argued that between 1908 and 1935 it believed that the line on the map was the true watershed line and the Temple was in Cambodia. On the other hand, Thailand also argued that Thailand had continuously used acts of local administration in the area, which was evidence of a belief that they had sovereignty over the Temple. The ICJ pointed out that if the first argument was true (if Thailand believed that the map showed the real watershed line), the actions supporting the second argument (of administration of the temple) violated the territory of Cambodia in the first argument.

Although Thailand was not satisfied with the decision, it reluctantly decided to be bound by it. However, for awhile there was a boycott of French and Polish products in Thailand. (The President of the ICJ at the time was from Poland.)

The ICJ most likely assumed that Thailand would accept the entire line on the map as the actual boundary. Instead, the opposite happened. Thailand put up a fence around the “footprint” of Temple itself, and claimed that only that small portion of land was in Cambodia. Moreover, when the Minister of Interior of Thailand travelled to the temple after the decision to give the order that Thailand surrender the sovereignty of the Temple, he also said that one day the Thai flag would fly over the Temple again.

In January 1963, there was a formal acceptance of the Temple by Prince Srihanouk. However, a civil war began in Cambodia in 1970, and in 1975 the Khmer Rouge occupied the Temple until the war ended many years afterwards. The Temple was reopened in 1998 and thousands of tourists came. But, in December 2001, the stairway that led from Thailand to the Temple was closed due to a polluted stream that was adversely affecting Thai villagers downstream from the Temple. Before the border closed, Cambodia and Thailand had been splitting the annual ticket revenue on a 70%-30% basis, respectively. In 2003, the border was reopened and there was a continuation of joint development.

In 2006, Cambodia sent an application to the World Heritage Committee, hoping to list the Temple as a World Heritage Site. At first the Committee put the decision on hold because of the ongoing dispute about area around the Temple and wanted there to be active support of Thailand for such a listing. There also has to be a clearly defined protective zone around a World Heritage site. Because the map originally submitted by Cambodia along with its application showed the protective zone extending up to the 1907 map line, in the view of some Thais Cambodia was using the UNESCO submission and world heritage status to help itself to Thai territory. As a result, Cambodia agreed to redraw the protective zone line on its application, and the revised map now displayed the area in question as disputed. In May 2008, Thailand agreed with the revised map and in June 2008, Thailand (represented by the Minister of Foreign Affairs) supported Cambodia’s application and signed a Joint Communique.

However, due to internal political pressures, Thailand withdrew its political support for the Cambodian application. Nonetheless, Cambodia continued its application and the Temple was accepted to be a World Heritage Site. The Constitutional Court of Thailand, however, then ruled that the Minister of Foreign Affairs had exceeded his authority. The Court viewed the Joint Communique as a treaty that required parliamentary approval. The Minister of Foreign Affairs, consequently, resigned and was accused of negligence. There were also angry protesters and demonstrations by Thai people.

In July 2008, Thai troops occupied the pagoda that had been built west of the temple in the disputed area. There were deaths and injuries of soldiers and civilians. In 2011, the United Nations Security Council called for a ceasefire between Thailand and Cambodia. However, the call was not obeyed and the use of force remained.

Consequently, Cambodia went to the ICJ again in April 2011 to request an Interpretation of the judgement of 15 June 1962 in the case concerning the Temple of Preah Vihear. The Court held its first hearing of the case in 2011 and ordered provisional measures to stop the fighting in the area around the Temple and for a removal of troops. While a cease fire was agreed to, neither side withdrew its troops.

In the 2011 case, the ICJ asked both sides for their understating of the term ‘vicinity.’ Thailand answered that the line that had been used to mark the boundary for the fence around the temple should be used for the determination of the limit of the vicinity of the Temple. There was also a sign built in 1962 that said, ‘Beyond this point lies the vicinity of the Temple of Preah Vihear.’ By contrast, Cambodia claimed that ‘vicinity’ meant all of the 4.6 kilometre disputed area, an area which included the nearby hill of Phnom Trap.

In November 2013, the ICJ stated that there was no time limit to request an Interpretation of a previous decision (there is a ten-year limit for Revision requests). The ICJ noted that there had been testimony in 1962 that a Thai police camp was located northeast of the Council of Ministers line (which was the fence line), but the camp was south of the Annex 1 line (the line on the 1907 map). Thus it was clear that the ‘vicinity’ could not be as strict as proposed by Thailand. Instead, the 2013 ICJ decision was that Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear (as defined in paragraph 98). The Court did not intend to term the vicinity of the Temple on Cambodian territory to be understood as applicable to territory outside the promontory of Preah Vihear. The Court ruled that it was not saying that the 1962 judgement treated Phnom Trap as a part of Thailand, but rather had not addressed that issue in its judgment of 1962 and so could not do so now. Nevertheless, the parties to the case before the Court had an obligation to implement the judgement of the Court in good faith. It was of the essence of that obligation that it did not permit either party to impose a unilateral solution.

The decision was unanimous (17-0). It was now clear that the promontory (and Cambodian sovereignty) extended at least as far as the foot of the hill of Phnom Trap, i.e., where the ground begins to rise from the valley. The adjacent land, however, remained a disputed area. Only mutual recognition could be the way forward. A ‘joint management area,’ into which visitors from both countries could freely enter and see the Temple and its surrounding areas, could also be a way forward. Thailand already has a similar joint development area with Malaysia over a disputed overlapping area in the Gulf of Thailand. Because the Khmer heritage predates both the nations of Thailand and Cambodia, so could it be useful to consider the disputed area as a shared heritage of the two countries.