Bora Touch counters the Thai Foreign Ministry's statement on border dispute

By Bora Touch, a Cambodian lawyer

Below is my response to "Thailand's Foreign Ministry statement concerning the Cambodian flag over Keo Sikha Kiri Svara Pagoda" published by The Nations, February 1, 2011. My comments begin with "Bora Touch" and the Thai Foreign Ministry's statement begins with "Thai FM"

Thai FM: The Foreign Ministry's statement concerning the Cambodian flag over Keo Sikha Kiri Svara Pagoda:

"With reference to the declaration of the Ministry of Foreign Affairs and international cooperation of the Kingdom of Cambodia dated January 28, 2011 regarding the issue of the flag of the Kingdom of Cambodia that is flying over the "Keo Sikha Kiri Svara" Pagoda, the Ministry of Foreign Affairs of the Kingdom of Thailand wishes to state the following:

1. According to the Memorandum of Understanding between the Government of the Kingdom of Thailand and the Government of the Kingdom of Cambodia on the Survey and Demarcation of Land Boundary of 2000, the 1904 and 1907 Treaties and "other documents relating to the application" of both treaties are the relevant legal documents to determine the boundary line. Thailand therefore does not accept the assertion by Cambodia that the 1:200,000 map is the basis for determining the boundary.

BORA TOUCH: The International Court of Justice (ICJ) in 1962 ruled that the 1:200,000 map, or the Dangrek Section or Annex I Map as known in the ICJ proceeding, (and all of the 1:200,000 maps) is valid and forms part of the 1904 and 1907 Siam - France (Cambodia) delimitation treaties. The Memorandum of Understanding on the Survey and Demarcation of Land Boundary of 2000 stipulates:

Article 1: The survey and demarcation of the land boundary between the Kingdom of Cambodia and the Kingdom of Thailand shall be jointly conducted in accordance with the following documents:

a) ... The Convention between France [Cambodia] and Siam [Thailand] modifying the stipulations of the Treaty of 3 October 1893, regarding the Territorial Boundaries and Other Arrangements, signed at Paris, 13 February 1904.

b) ... The Treaty between the His Majesty the King of Siam and the President of the Republic of France, singed at Bangkok, 23 March 1907 ... and the Protocol Concerning the Delimitation of Boundaries and Annexed to the Treaty of 23 march 1907; and

c) Maps which are the results of the demarcation works of the Commissions of the Delimitation of the Boundary of the Indochina [Cambodia] and Siam ... set up under the Covnention of 1904 and the Treaty of 1907 between France [Cambodia] and Siam [Thailand] and other documents relating to the application of the Convention of 1904 and the Treaty of 1907 between France[Cambodia] and Siam [Thaiand].

The Terms of Reference and Master Plan for the Joint Survey and Demarcation of Land Boundary between Cambodia and Thailand (TOR) of 23 March 2003 stipulates:

1.1.3. Maps which are the results of the Demarcation Works of the Commissions of Delimitation of boundary between Indochina [Cambodia] and Siam [Thailand].. sep up under the Convention of 1904 and the Treaty of 1907 between France [Cambodia] and Siam [Thailand] (theferafter referred to as "the maps of 1:200,000") and other documents relating to the application of the Convention of 1904 and the Treaty of 1907 between France [Cambodia] and Siam [Thailand].

Paragraph 10 of the Terms of Reference emphasises:

"This TOR is without prejudice to the legal value of the previous agreements between France and Siam concerning the delimitation of boundary, nor to the value of the Maps of the Commissions of the Delimitation of Boundary between Indochina [Cambodia] and Siam [Thailand] set up under the Convention of 13 February 1904 and the Treaty of 23 March 1907, reflecting the boundary line of Indochina and Siam"

Clearly the maps referred to are the 1:200,000 map(s) which, as mentioned above, the ICJ in 1962 ruled to be valid and forms part of the 1904 (and 1907) treaties. Thailand is therefore not in a position to assert that the 1:200,000 maps (one of which is known as Dangrek Section or Annex I map in which the PreahVihear Temple is situated) are not valid. There is no legal basis for such an assertion and to make such an assertion would amount to saying that, in contravention of the UN Charter, Thailand does not accept and will not enforce the Judgment of the ICJ.

Thai FM: 2. Cambodia also admitted in the aforementioned declaration that the decision of the International Court of Justice (ICJ) of 1962 did not rule on the question of the boundary line between Thailand and Cambodia.

Bora Touch: Contrary to Thailand's assertion, in 1962 the ICJ ruled unambiguously that the 1:200,000 maps (the Dangrek Section or Annex I Map included) is valid and is a part of the 1904 and 1907 treaties. Since the ICJ accepted and ruled that the map(s), which is the result of the boundary demarcation of the French-Siamese Joint Commissions, is valid and a part the treaties, the ICJ decided that it was unnecessary to rule on the question of boundary because the matter was decided (the map was ruled to be valid). The question did not need an answer as it was determined by the map(s). As scholar Kieth Highet (1987) pointed out: "the Court held that since the location indicated in the map had been accepted, it was unncessary to examine the physical location of boundary as derived from the terms of the Treaty". The ICJ did rule on the boundary question by ruling that map was valid.

Thai FM: 3. Thailand maintains that the "Keo Sikha Kiri Svara" Pagoda is situated on Thai territory, and demands that Cambodia remove both the pagoda and the Cambodian flag flying over the pagoda. This is a reiteration of the many protests that Thailand has submitted to Cambodia regarding the activities carried out in the pagoda and the surrounding area, all of which constitute violations of sovereignty and territorial integrity of the Kingdom of Thailand.

Bora Touch: According to the 1:200,000 map (or the Dangkrek Section or Annex I map), the Preah Vihear Temple and the 4.6 sq km parcel of land undisputedly are inside Cambodian territory. Thailand and Cambodia agree that the "Keo Sikha Kiri Svara" Pagoda is situated in the 4.6 sqkm parcel of land.

Thai FM: 4. The Ministry reaffirms Thailand's commitment to resolving all boundary issues with Cambodia in accordance with international law through peaceful means under the framework of the Thai-Cambodian Joint Commission on Demarcation for Land Boundary (JBC). The determination of the boundary line in the area of the Temple of Phra Viharn [Preah Vihear Temple] is still subject to ongoing negotiation under the framework of the JBC."

Bora Touch: It is misleading for Thailand to say it applies international law in this regard. It obviously failed to perform the obligations as stipulated under the ICJ Judgment of 1962. It thus has violated article 94(1) of the UN Charter/. Cambodia complains to the UN Security Council for appropriate measures against Thailand: Art 94(2).

Bora Touch, lawyer