Wednesday, June 25, 2008

Reference: The judgement of the World Court 1962, Bangkok Post, June 25, 2008

The essence of the agreement between Thailand and the French in the early 1900s with respect to the border between them in the region of Preah Vihear is that the border corresponds with the watershed line. The opinion of the World Court in 1962 that Preah Vihear falls on the Cambodian side is based on the logic that the French had drawn the map that way and that the Thais had seen it but had been silent on the issue of Preah Vihear. In so doing, the Court took it upon itself to interpret Thailand's silence and concluded that their silence could only mean that Thailand had accepted the map as drawn. This interpretation is logically flawed because the silence of the Thais may also be interpreted to mean that they were waiting for positive verification that the French line corresponded with the watershed. It is very clear that Thailand had never accepted anything but the watershed line as the limits of their territory. Now that we know that the French map does not correspond with the watershed; and since the watershed still stands as the only agreement that both Thailand and the French had explicitly accepted, it is clear that the Court erred in its opinion and that the matter should be reviewed in its entirety. The map drawn by the French and the opinion passed by the World Court contravene the treaty between Thailand and the French with respect to their border in the region of Preah Vihear.

Cha-am Jamal


Anonymous said...

the court should have delayed judgment until a neutral party could confirm the watershed line since the two litigants already had a treaty demarcating their boundary along that line.

Anonymous said...

the alleged acceptance of the french map by the thais is circumstantial evidence at best and hypothetical at worst

Rahat said...

Khun Cha-am Jamal,

With all due respect, in my opinion the court's reasoning was not flawed, yours is. I hope you don’t mind my elaboration being quite lengthy; this is a sensitive and tricky issue which has been politicized way beyond what it really is. Here goes:
Under the law of estoppel (which was the basis of the temple being awarded to Cambodia) there are three elements:
1. Representation,
2. Reliance on that Representation,
3. Consequent Detriment
In reference to the present matter, the court of law will NOT look at Thailand's intentions; your argument that "the silence of the Thais may also be interpreted to mean that they were waiting for positive verification that the French line corresponded with the watershed" makes no sense. When Thailand never objected, she was considered to have acquiesced to the Annex 1 map. When it comes to the principle of Estoppel, no court of law will allow your logic of “the silence could also have meant that...” unless their exists overwhelming evidence to indicate OTHERWISE. Here is an excerpt from the Judgment of the ICJ, taken from the Bangkok Post:
“It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation; since there was no reaction on the part of the Siamese authorities, either then or for many years, they must be held to have acquiesced.
The maps were moreover communicated to the Siamese members of the Mixed Commission, who said nothing, to the Siamese Minister of the Interior, Prince Damrong, who thanked the French Minister in Bangkok for them, and to the Siamese provincial governors, some of whom knew of Preah Vihear.
If the Siamese authorities accepted the Annex 1 map without investigation, they could not now plead any error vitiating the reality of their consent.
The Siamese Government and later the Thai Government had raised no query about the Annex 1 map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1995 a survey had established a divergence between the map line and the true line of the watershed, and other maps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Simese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so.
The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the watershed line.
Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received there by the French Resident for the adjoining Cambodian province. Siam failed to react.
From these facts, the Court concluded that Thailand had accepted the Annex I map.”

I would also like to further add 2 very important articles under the Statute of the ICJ which the opposition leader, during the parliamentary debate, bravely raised despite him apparently having little understanding of the function of the court and its rules:
Article 60: The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party
Article 61:
1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment.

I hope that the information that I provided above is clear; the court will not review this matter because there is NO new evidence to indicate that they had erred in their judgement; furthermore, due to the time lapse under article 61, nothing can be done now even if new evidence arises. Don’t forget the very important fact that for the ICJ to rule on a matter, BOTH states must agree to is jurisdiction, i.e. Thailand, or any other state for that matter, can consent to the ICJ deciding a dispute only to later say “i don’t like your judgment so i will not follow”. Like it or not, it is what it is!
So let me make this as blunt as possible: Thailand had LOST the rights to claim the temple when the World Court rightly ruled in favour of Cambodia in 1962. The Joint Communique (JC) signed by our Foreign Minister in NO WAY hands over Thai territory to Cambodia that they did not already receive from the judgement. It even expressly states that this JC will NOT have an effect on the 4.6KM disputed territory which will be negotiated on a future occasion. I will be more than willing to discuss this further with you or anyone be it through this wonderful blog or email. Keep up those interesting letters to the Bangkok Post!