Cambodia Counters Thai Border Claims at the Hague

Graphic on the Preah Vihear temple on the border between Thailand and Cambodia. The two nations go to court on Monday in a dispute over land surrounding the site

By Zsombor Peter
The Cambodia Daily
April 16, 2013

Cambodia began four days of hearings at the International Court of Justice (ICJ) yesterday by insisting on the country’s very right to ask the U.N.’s top court to settle the deadly dispute with Thai­land over hotly contested land next to Preah Vihear temple. 

At stake is a 4.6 square km tract of land next to the temple over which Thailand and Cam­bodia have fought several brief but lethal clashes since 2008, when Thailand failed to stop Cambo­dia’s bid to list the 10th-century sanctuary as a world heritage site.

Amid the mounting death toll, Cambodia turned to the ICJ in April 2011, just two months after the heaviest bout of fighting around Preah Vihear, to settle the matter for good by interpreting a 1962 decision by the ICJ in which the court awarded Cambodia the Preah Vihear temple, and its “vicinity.”

Thailand maintains that the 1962 ruling made no determination regarding the land around the temple.

Delivering his opening re­marks in French at The Hague, Foreign Minister Hor Namhong said Cambodia had no choice but to file the request to the court back in 2011.

“Why is Cambodia coming back after 50 years?… It is the necessity that we felt absolutely imposed upon us,” the foreign minister said. “This necessity results, as you will be well aware, from acts of arms from Thailand,” he said.

Accusing Thailand of trying to play down the military clashes at the temple and elsewhere along the border, Mr. Namhong said, “Thailand would wish that this be forgotten.”

Cambodia is asking the ICJ to “interpret” the decision it handed down in 1962, which awarded the Preah Vihear temple to Cambodia on the basis of a colonial-era French map that placed it on the Cambodian side of the then-border. Because Thailand had not objected to that map for most of the previous half-century, the court decided, it had effectively accepted the boundaries.

Though the 1962 decision did not specifically rule on the now-disputed land beside the temple, the ICJ did order Thailand to withdraw from the temple’s “vicinity.” And by that, Cambodia argues, the court clearly meant everything on the Cambodian side of the French map, which includes the 4.6 square km now being contested.

Thailand argues that the ICJ has no jurisdiction to interpret the 1962 decision because Cambodia is actually asking for more than an interpretation, and because the two countries never actually disagreed on how to interpret the 1962 decision in the first place. Thailand is also seeking to play down the relevance of the French map compared to its own maps of the region.

Cambodia’s team of international lawyers started picking Thai­land’s claims apart at The Hague yesterday.

“Both argument are fallacious and both argument are beside the point,” said Franklin Berman, an Oxford University law professor, speaking on behalf of Cambodia.

While ICJ rules generally discourage interpreting an old decision, Mr. Berman said, they made a clear exception when interpretation was “inseparable from the operation part” of the 1962 decision, in this case the order for Thailand to withdraw from Preah Vihear temple’s “vicinity.”

“And that is the case here,” Mr. Berman told the court.

He then attacked Thailand’s claim that there was no need to interpret the 1962 decision because it was crystal clear on what the temple “vicinity” was.

Mr. Berman brought up a Thai government document from 1962, declassified only in 2011 and provided to the court in 2012, in which Thailand itself debated what area it was meant to withdraw from and put forward two options. Both those options placed the disputed 4.6 square km in Thailand.

“This is pure interpretation; what else could it be?” Mr. Ber­man said, and proved Cam­bodia’s point “that there can be no implementation without interpretation.”

Mr. Berman also called “ludicrous” Thailand’s efforts to use its own maps—with its own proposed national borders—to interpret the temple’s “vicinity” instead of the French map the ICJ used in its original decision and referred to in its reasoning in 1962.

“What else is the reasoning in a reasoned judgment for?” he asked.

As for Thailand’s claim that Cambodia had never officially objected to its interpretation of the 1962 decision, American lawyer Rodman Bundy reeled off a list of documents and reports clearly recording Cambodia’s protests to Thailand from the start.

“It’s extraordinary,” Mr. Bundy said of Thailand’s claim. “The facts, Mr. President, identify precisely the opposite.”

French lawyer Jean-Mark Sorel wrapped up the day’s hearing by attacking Thailand’s claim that the original decision was meant to settle a territorial dispute and not a boundary dispute, and so could not now settle the dispute over the 4.6 square km.

Mr. Sorel argued that the court could not settle the territorial dispute—who own Preah Vihear temple—without stating where that territory starts and ends. Settling the territorial dispute, he said, “leads directly to that bound­ary being established.”

He argued that the court in 1962 would never have deliberately left the boundary between the two countries unsettled. More likely, he said, the court thought the boundary issue was settled by the French map—which Thailand had effectively accepted—and so felt no need to spell it out in ordering Thai troops to leave the temple’s vicinity.

“That’s what seems the most probable to Cambodia,” he said.

After a break in hearings today, Thailand will make its case before the ICJ on Wednesday. Cambodia and Thailand will then have one more day each on Thursday and Friday, respectively.

As the hearing got under way at The Hague, Cambodian troops stationed near the temple said they were busy celebrating the Khmer New Year, which started Sunday and ends on Wednesday.

“It is quiet here,” said Lieutenant General Srey Doek, Intervention Division 3 commander of the Royal Cam­bo­dian Armed Forces based in Preah Vihear, dismissing reports of a troop buildup around the talks.

“Our troops are celebrating Khmer New Year,” he said. “We take turns. Some visit their families and some go to the pagoda.”

Thailand and Cambodia withdrew their troops from a demilitarized zone the ICJ created around the temple and disputed area in July, though it remains unclear whether either has complied fully with the order.

(Additional reporting by Neou Vannarin)