Interesting Article on Border in Bangkok Post

[Flashermac]

 

The part about the "acceptance" simply bewilders me.

 

As the ICJ majority said:

 

[color:red]"But in 1934-1935 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."[/color]

 

Does that sound like "acceptance"?

 

Also, the Royal Thai Department of Fine Arts visited the ruins several times, studying them and mapping them. Would they do that if the felt it was in Cambodia? As far as is known, no one from Cambodia ever visited the site in the first half of the 20th century.

 

But the majority said because the Thai government didn't bring it up in discussions with France, it meant they accepted the incorrect border. The Thai argument was - "We had it and we controlled it. Why should we talk to the French about something that was ours?" Sounds good to me. Wasn't to the Court though.

 

I imagine the reason Thailand did not appeal is because it went 9 to 3 against them. Be rather hard to convince 4 judges to change their vote.

 

One Thai history prof said to me, "A century ago most Thais didn't even know what a map was. We didn't realise the French map was wrong until it was too late."

 

 

[ThaiHome]

Hmmm... I am all in favor of Thailand here and I will certainly keep an open mind, but I am baffled by some of your statements. For example, you say:

 

The ICJ ruling is final cannot be appealed. There is a 10 year time limit to introduce new evidence.

 

What is the point of introducing new evidence if the ICJ ruling is final? If it’s final it cannot be changed. If it can be changed through the introduction of new evidence it’s not final.

 

It’s not my statement; it is the ICJ statues that say it.

Link

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.

 

 

 

You describe the ICJ judgment as follows:

 

Though the judgment said that the Annex I map showed the temple inside Cambodia and Thailand never questioned the map and therefore must have accepted the map as showing the border it did not rule the map was the border. It was not asked to make that ruling and did not. Nor did it choose to say if the map diverged from the watershed that was supposed to be the border.

 

The ICJ itself describes its judgment as follows:

 

From these facts, the court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be given now would be the same.

 

The Court therefore felt bound to pronounce in favour of the frontier indicated on the Annex I map in the disputed area

 

It’s a mouthful, but let’s focus on the two statements at the beginning of each paragraph: “From these facts, the court concluded that Thailand had accepted the Annex I mapâ€. And then: “The court therefore felt found to pronounce in favor of the frontier indicated on the Annex 1 Map.â€

 

Is the ICJ own description of its own judgment wrong? The ICJ’s description of the judgment seems to differ from your description. Can you explain?

 

Cambodia is pressing for an ICJ case to clarify the judgment, and Thailand opposes a new case. Now if your analysis of the ICJ judgment is correct I would expect it to be the other way around. Thailand would be pressing for a clarifying judgment and Cambodia would be in opposition to an ICJ case.

 

Why would Thailand oppose a new case to clarify the judgment if it had nothing to fear from such a case? Why would Cambodia press for such a case if the original judgment did not – as set out in the quoted description of the judgment from the ICJ itself – support its position?

 

I am certainly no expert in this area and I am keeping an open mind about this, but I need to see some references to sources and consistent arguments to be persuaded. Can you provide them?

 

 

Would seem you failed to read or understand what I said

 

... It is a bit of a lawyerly difference that may be a bit subtle for some to appreciate but around that technicality is Thailand’s only case at this point.

 

 

You are confusing the reason for the ruling with the ruling itself. Cambodia did not ask for the court to say where the border was located. It asked the court to rule that Cambodia had sovereignty over the temple, which the court did indeed rule was true. Like I said, it is a subtle but important distinction that many will miss.

 

The ICJ has not posted Cambodia’s latest request for interpretation of the Judgment, and only quotes parts of it in the press release. Apparently Cambodia is indeed asking that the court say the boundary is the map it used to say the temple was under Cambodia sovereignty.

 

Link

“(1) according to Cambodia, the Judgment [rendered by the Court in 1962] is based on the prior existence of an international boundary established and recognized by both States;

(2) according to Cambodia, that boundary is defined by the map to which the Court refers on page 21 of its Judgment …, a map which enables the Court to find that Cambodia’s sovereignty over the Temple is a direct and automatic consequence of its sovereignty over the territory on which the Temple is situated …;

(3) according to the Judgment, Thailand is under an obligation to withdraw any military or other personnel from the vicinity of the Temple on Cambodian territory. Cambodia believes that this is a general and continuing obligation deriving from the statements concerning Cambodia’s territorial sovereignty recognized by the Court in that region.â€

 

This could get very interesting as the court used the visit of Prince Damrong to the temple in 30’s and the fact he was greeted as a visiting dignitary by the French and their puppet government as an example that Thailand accepted the map. The question, I think will become does this same rationalization apply to surrounding area from the map border to where the cliff marks the real watershed. Since the 1907 treaty ceded a large area of what was Thailand to the French, the surrounding area has been part of Thailand for long time and Cambodia has never claimed it until now. If Thailand did indeed accept the map, why is the disputed area considered by everyone that has ever lived there in the past 100 hundred years to be Thailand?

 

Hopefully what will come out of this is how flimsy the 1962 ruling was in face of what the 1907 treaty actually said and where the watershed actually lies.

TH

[ozpharlap]

Yes, it is final based on the evidence currently before the court. The rider:

 

"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",

 

is a review of the decision based on any new facts (in accordance with the sections limitations for such a review). It denies the possibility of an appeal to any other court, tribunal or other body (i.e., a rider clause to limit appeals for any smart lawyer who states later on it should be heard in this venue or that forum etc).

 

In the English jurisdiction, a right of appeal is only found in statute, not at common law

[Flashermac]

 

As I've said, Prince Damrong's meeting the Frenchie was BEFORE the Thais discovered the map was wrong. Prince Damrong was exiled to Penang by the 1932 coup makers, who obviously feared his influence. He was not allowed to return to Thailand until 1942.

 

It was a survey in 1934-35 - when Damrong was in exile - that discovered the map did not follow the agreed on natural watershed. So how does a visit before that prove anything?

 

 

 

[ThaiHome]

Here is the wording of the judgment on the significance of Prince Damrong’s visit.

 

Interestingly they admit that Thailand was performing “acts of administration†in the “vicinity†of the temple. This shows that the court was solely focused on the sovereignty of the temple and not the overall border.

TH

The Court has considered the evidence furnished by Thailand of acts of an administrative character performed by her officials at or relative to Preah Vihear. France, and subsequently Cambodia in view of her title founded on the Treaty of 1904, performed only a very few routine acts of administration in this small, deserted area. It was specifically admitted by Thailand in the course of the oral hearing that if Cambodia acquired sovereignty over the Temple area by virtue of the frontier settlement of 1904, she did not subsequently abandon it, nor did Thailand subsequently obtain it by any process of acquisitive prescription. Thailand's acts on the ground were therefore put forward as evidence of conduct as sovereign, sufficient to negative any suggestion that, under the 1904 Treaty settlement, Thailand accepted a delimitation having the effect of attributing the sovereignty over Preah Vihear to Cambodia. It is therefore from this standpoint that the Court must consider and evaluate these acts. The real question is whether they sufficed to efface or cancel out the clear impression of acceptance

of the fqontier line at Preah Vihear to be derived from the various considerations already discussed.

 

With one or two important exceptions to be mentioned presently, the acts concerned were exclusively the acts of local, provincial, authorities. To the extent that these activities took place, it is not clear that they had reference to the summit of Mount Preah Vihear and the Temple area itself, rather than to places somewhere in the vicinity. But however that may be, the Court finds it difficult to regard such local acts as overriding and negativing the consistent and undeviating attitude of the central Siamese authorities to the frontier line as mapped.

 

In this connection, much the most significant episode consisted of the visit paid to the Temple in 1930 by Prince Damrong, formerly Minister of the Interior, and at this time President of the Royal Institute of Siam, charged with duties in connection with the

National Library and with archaeological monuments. The visit was part of an archaeological tour made by the Prince with the permission of the King of Siam, and it clearly had a quasi-officia1 character. When the Prince arrived at Preah Vihear, he was officially received there by the French Resident for the adjoining Cambodian province, on behalf of the Resident Superior, with the French flag flying. The Prince could not possibly have failed to see the implications of a reception of this character. A clearer

affirmation of title on the French Indo-Chinese side can scarcely be imagined. It demanded a reaction. Thailand did nothing. Furthermore, when Prince Damrong on his return to Bangkok sent the French Resident some photographs of the occasion, he used language which seems to admit that France, through her Resident, had acted as the host country.

[Flashermac]

And yet as I said, the Thais did not seem to have realised the map was wrong [color:red]at the time of the visit[/color].

 

Does one see a bias on the part of the justices towards the French interpretation? The Thais administered it, but that doesn't count. They are just wogs any way.

 

Is there a breakdown on the nationality of the judges?

 

 

 

 

[Gadfly]

If Thailand did indeed accept the map,

 

This is the nut of the problem. Irrespective of whether you describe this statement as the rationale for the judgment or part of the judgment itself (making that distinction is like counting angels on the pin of a needle and you can be sure that any argument that relies on this facile distinction will face a tremendous amount skepticism), it is - without any dispute - plainly there in the Court's "decision".

 

That is what the words say. Can't argue with that.

 

If its there in the judgment or decision or however you want to describe it, you, and if your presenting the Thai side, the burden is on you, Thailand, to explain how a new panel can reconcile this decision (statement) with Thailand's arguments now about the surrounding area. That is a tough burden to meet.

 

How can both (a) the Court's prior statement (irrespective of how you describe it, you need to account for it in presenting the Thai position) that the map depicts the boundary with ( Thailand's position. Pretty hard to do.

 

Complicating matters further, Thailand failed to appeal or introduce new evidence (whatever words you want to use in the spin to describe it) in the 10 year period for doing so. Simply put, they had ten years to challenge the a decision that said the map depicts the boundary, and they never did so. How do you explain that? You can be sure the Cambodian side will raise that question, and you can be equally sure that that a new ICJ panel will want that question answered before they have go into the complicated history of this dispute.

 

Simply arguing that the statement the map represents the boundary was not part of the judgment (seems pretty shaky to me) won't count for much. You'll need to explain how both (a) the prior ICJ's decision (or statement) that the map represents the boundary and ( the Thai position can both be true.

 

Good luck! This is why Cambodia is taking this to the ICJ and this is why Thailand is opposing Cambodia's efforts to take it to the ICJ.

[Central Scrutinizer]

And yet as I said, the Thais did not seem to have realised the map was wrong [color:red]at the time of the visit[/color].

 

Does one see a bias on the part of the justices towards the French interpretation? The Thais administered it, but that doesn't count. They are just wogs any way.

 

Is there a breakdown on the nationality of the judges?

 

 

 

 

 

 

 

 

 

 

 

 

 

Wow. Flash. I was thinking the exact same thing myself. Even to thinking the same derogatory word as you used. "Yeah, they are just wogs. The French are same us. What do these Thais know anyway." Etc. Thinking on the same wavelength on reading that. I wonder how many thought the same when reading this stuff.

[Flashermac]

 

Great minds think alike.

 

A colonial power - and the French were a power even in Europe at the time - was forcing its will on an Asian nation during the age of colonialism. The court more or less said that whatever the French wanted to do was acceptable. The French "cheated" on the map? Well, so what. Were the Thais supposed to fight them over it?

 

If you look back at history, you will see that Rama VI declared war on Germany in 1918 not because of anything Germany had done, but because it was advantageous to be on the same side as the French and Brits - whose colonies bordered on Thailand! In 1893 the French fleet had forced its way up the Chao Phaya River and turned its guns on the Bangkok Grand Palace. They then presented their demands to Rama V. This was little more than 10 years before the 1904 survey the French "fudged" to put the temple ruins on their side regardless of the agreed border determination (the watershed).

 

I see a European court deciding in favour of a European protege (former French colony Cambodia) against the only SE Asian nation that managed to maintain its independence in the colonial era. People like to claim racism for everything under the sun these days. So what might you call the ICJ's 1962 decision?

 

 

p.s. I agree with Gad though. I don't see how the Thais can win this round any more than they did the last. Get ready for some pissed off Thais and a lot of politicians ranting and pointing fingers.

 

 

[Pom Michael]

This is why Cambodia is taking this to the ICJ and this is why Thailand is opposing Cambodia's efforts to take it to the ICJ.

 

I don't see anything where Thailand is actively opposing this - I actually think Thailand has everything to gain, and nothing to lose.