Case Summary
| Citation | TEMPLE OF PREAH VIHEAR CASE (Merits)Cambodia v. Thailand(ICJ Reports 1962, p. 6)(Principle of Acquiescence and Estoppel) |
| Keywords | res judicata, estoppel, preah vihar temple |
| Facts | The subject of dispute was sovereignty over the region of the Temple of Preah Vihear. The boundary between Cambodia (then a protectorate of France) and Thailand (then Siam) in the area of Preah Vihear was to be determined by a Treaty between France and Siam of 13 February 1904. The treaty stated that it was to follow the watershed line and provided for the details to be worked out by a Mixed Franco-Siamese Commission. Survey was conducted by the Commission. These maps were completed by a team of French officers, some of whom had been members of the Mixed Commission. The maps were never approved by the Commission which did not meet again after the map had been prepared. In the map, the area of Preah Vihear was shown on Cambodian side. Cambodia principally relied on this map in support of her claim to sovereignty over the temple. Thailand, on the other hand contended that the map, not being the work of the mixed Commission, had no binding character. |
| Issues | Whether the Preah Vihear temple lies in Cambodian territory or Thailand’s territory? Under which jurisdiction temple comes? |
| Contentions | |
| Law Points | ➢ The Court concluded that at its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as proposing to represent the outcome of the work of delimitation, since there was no reaction on the part of the Siamese authorities, either than or for many years, they must be held to have acquiesced. ➢ The Court held: It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on notice of a possible error. ➢ The Court considers that the character and qualifications of the persons who saw the Annex I map on the Siamese side would alone make it difficult for Thailand to plead error in law. These people include the members of the very Commission of Delimitation within whose competence this sector of the frontier had lain. ➢ Furthermore, in 1930, Siamese Prince Damrong visited that disputed area and was officially received thereby the French resident at a ceremony at which the French flag was flown, and Siamese failed to react. The Court concluded that Thailand had accepted the map and was precluded by her conduct from asserting that she did not accept it. |
| Judgement | The Court found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities. |
| Ratio Decidendi & Case Authority | In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.The assertion of sovereignty in the publications of map by combodia and continue acts in relation to temple amounting to continued claim to ownership. The extent to which silence as such may create an estoppel is unclear and much will depend upon the surrounding circumstances, in particular the notoriety of the situation, the length of silence maintained in the light of that notoriety and the type of conduct that would be seen as reasonable in the international community in order to safeguard a legal interest. |
Full Case Details
The Temple of Preah Vihear is an ancient sanctuary and shrine situated on the borders of
Thailand and Cambodia. Although now partially in ruins, this Temple has considerable
artistic and archaeological interest, and is still used as a place of pilgrimage.
Until Cambodia attained her independence in 1953 she was part of French Indo-China,
and her foreign relations-like those of the rest of French Indo-China-were conducted by
France as the protecting Power. It is common ground between the Parties that the present
dispute has its fofzs et origo in the boundary settlements made in the period 1904-1908,
between France and Siam (as Thailand was then called) and, in particular, that the sovereignty
over Preah Vihear depends upon a boundary treaty dated 13 February 1904, and upon events
subsequent to that date. The Court is therefore not called upon to go into the situation that
existed between the Parties prior to the Treaty of 1904.
(After the completion of the work of the Mixed Commission of Delimitation, the
Siamese Government requested the French Government to prepare the maps of the region).
The French Government duly arranged for the work to be done by a team of four French
officers. This team worked under the general direction of Colonel Bernard, and in the late
autumn of 1907 it completed a series of eleven maps covering a large part of the frontiers
between Siam and French Indo-China, including those portions that are material in the present
case.
Amongst these was one of that part of the Dangrek range in which the Temple is
situated, and on it was traced a frontier line purporting to be the outcome of the work of
delimitation and showing the whole Preah Vihear promontory, with the Temple area, as being
on the Cambodian side. If therefore the delimitation carried out in respect of the Eastern
Dangrek sector established or was intended to establish a watershed line, this map purported
to show such a line. This map was filed by Cambodia as Annex 1 map.
It is on this map that Cambodia principally relies in support of her claim to sovereignty
over the Temple. Thailand, on the other hand, contests any claim based on this map, on the
following grounds: first, that the map was not the work of the Mixed Commission, and had
therefore no binding character; secondly, that at Preah Vihear the map embodied a material
error, not explicable on the basis of any exercise of discretionary powers of adaptation which
the Commission may have possessed. This error, according to Thailand’s contention, was that
the frontier line indicated on the map was not the true watershed line in this vicinity, and that
a line drawn in accordance with the true watershed line would have placed, and would now
place, the Temple area in Thailand. It is further contended by Thailand that she never
accepted this map or the frontier line indicated on it, at any rate so far as Preah Vihear is
concerned, in such a way as to become bound thereby; or, alternatively that, if she did accept
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the map, she did so only under, and because of, a mistaken belief (upon which she relied) that
the map line was correctly drawn to correspond with the watershed line.
Being one of the series of maps of the frontier areas produced by French Government
topographical experts in response to a request made by the Siamese authorities, printed and
published by a Paris firm of repute, all of which was clear from the map itself, it was thus
invested with an officia1 standing; it had its own inherent technical authority; and its
provenance was open and obvious.
The real question, therefore, which is the essential one in this case, is whether the Parties
did adopt the Annex 1 map, and the line indicated on it, as representing the outcome of the
work of delimitation of the frontier in the region of Preah Vihear, thereby conferring on it a
binding character.
It has been contended on behalf of Thailand that this communication of the maps by the
French authorities was, so to speak, ex parte, and that no forma1 acknowledgment of it was
either requested of, or given by, Thailand. In fact, as will be seen presently, an
acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were
otherwise, it is clear that the circumstances were such as called for some reaction, within a
reasonable period, on the part of the Siamese authorities, if they wished to disagree with the
map or had any serious question to raise in regard to it. They did not do so, either then or for
many years, and thereby must be held to have acquiesced.
So far as the Annex 1 map is concerned, it was not merely the circumstances of the
communication of this and the other maps that called for some reaction from the Siamese
side, if reaction there was to be; there were also indications on the face of the map sheet
which required a reaction if the Siamese authorities had any reason to contend that the map
did not represent the outcome of the work of delimitation. The map-together with the other
maps was, as already stated, communicated to the Siamese members of the Mixed
Commission. These must necessarily have known (and through them the Siamese
Government must have known) that this map could not have represented anything formally
adopted by the Mixed Commission, and therefore they could not possibly have been deceived
by the title of the map, namely, “Dangrek- Commission of Delimitation between Indo-China
and Siam” into supposing that it was purporting to be a production of the Mixed Commission
as such. Alternatively, if the Siamese members of the Commission did suppose otherwise, this
could only have been because, though without recording them, the Mixed Commission had in
fact taken some decisions on which the map was based; and of any such decisions the
Siamese members of the Commission would of course have been aware.
The Siamese members of the Commission must also have seen the notice appearing in
the top left-hand corner of the map sheet to the effect that the work on the ground had been
carried out by Captains Kerler and Oum. They would have known, since they were present at
the meeting of the Commission held on 2 December 1906, that Captain Oum had then been
instructed to carry out the survey of the eastern sector of the Dangrek range, covering Preah
Vihear, and that he was to leave the next day to take up this assignment. They said nothing-
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either then or later-to suggest that the map did not represent the outcome of the work of
delimitation or that it was in any way inaccurate.
That the Siamese authorities by their conduct acknowledged the receipt, and recognized
the character, of these maps, and what they purported to represent, is shown by the action of
the Minister of the Interior, Prince Damrong, in thanking the French Minister in Bangkok for
the maps, and in asking him for another fifteen copies of each of them for transmission to the
Siamese provincial Governors.
Further evidence is afforded by the proceedings of the subsequent Commission of
Transcription which met in Bangkok in March of the following year, 1909, and for some
months thereafter. This was a mixed Franco-Siamese Commission set up by the Parties with
the object of getting an officia1 Siamese geographical service started, through a consolidation
of all the work of the two Mixed Commissions of 1904 and 1907. A primary aim was to
convert the existing maps into handy atlas form, and to give the French and Siamese terms
used in them their proper equivalents in the other languages. No suggestion that the Annex 1
map or line was unacceptable was made in the course of the work of this Commission.
It was claimed on behalf of Thailand that the maps received from Paris were only seen
by minor officials who had no expertise in cartography, and would know nothing about the
Temple of Preah Vihear. Indeed it was suggested during the oral proceedings that no one in
Siam at that time knew anything about the Temple or would be troubling about it.
The Court cannot accept these contentions either on the facts or the law. If the Siamese
authorities did show these maps only to minor officials, they clearly acted at their own risk,
and the claim of Thailand could not, on the international plane, derive any assistance from
that fact. But the history of the matter, as set out above, shows clearly that the maps were seen
by such persons as Prince Devawongse, the Foreign Minister, Prince Damrong, the Minister
of the Interior, the Siamese members of the First Mixed Commission, the Siamese members
of the Commission of Transcription; and it must also be assumed that the Annex 1 map was
seen by the Governor of Khukhan province, the Siamese province adjoining the Preah Vihear
region on the northern side, who must have been amongst those for whom extra copies were
requested by Prince Damrong. None of these persons was a minor official. All or most had
local knowledge. Some must have had knowledge of the Dangrek region. It is clear from the
documentation in the case that Prince Damrong took a keen persona1 interest in the work of
delimitation, and had a profound knowledge of archaeological monuments. It is not
conceivable that the Governor of Khukhan province, of which Preah Vihear formed part up to
the 1904 settlement, was ignorant of its existence.
In any case this particular contention of Thailand’s is decisively disproved by a
document deposited by Thailand herself, according to which the Temple was in 1899 “rediscovered” by the Siamese Prince Sanphasit, accompanied by some fifteen to twenty
officials and local dignitaries, including, it seems, the then Governor and Deputy-Governor of
Khukhan. It thus appears that only nine years previous to the receipt of the Annex 1 map by
the Siamese authorities, a considerable number of persons having high officia1 standing in
Siam knew of Preah Vihear.
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The Court moreover considers that there is no legal foundation for the consequence it is
attempted to deduce from the fact that no one in Thailand at that time may have known of the
importance of the Temple or have been troubling about it. Frontier rectifications cannot in law
be claimed on the ground that a frontier area has turned out to have an importance not known
or suspected when the frontier was established. It follows from the preceding findings that the
Siamese authorities in due course received the Annex 1 map and that they accepted it. Now,
however, it is contended on behalf of Thailand, so far as the disputed area of Preah Vihear is
concerned, that an error was committed, an error of which the Siamese authorities were
unaware at the time when they accepted the map.
It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the
party advancing it contributed by its own conduct to the error, or could have avoided it, or if the circumstances
were such as to put that party on notice of a possible error. The Court considers that the character and
qualifications of the persons who saw the Annex 1 map on the Siamese side would alone make it difficult for
Thailand to plead error in law. These persons included the members of the very Commission of Delimitation
within whose competence this sector of the frontier had lain. But even apart from this, the Court thinks that there
were other circumstances relating to the Annex 1 map which make the plea of error difficult to receive.
An inspection indicates that the map itself drew such pointed attention to the Preah Vihear region that no
interested person, nor anyone charged with the duty of scrutinizing it, could have failed to see what the map was
purporting to do in respect of that region. If, as Thailand has argued, the geographical configuration of the place is
such as to make it obvious to anyone who has been there that the watershed must lie along the line of the
escarpment (a fact which, if true, must have been no less evident in 1908), then the map made it quite plain that the
Annex 1 line did not follow the escarpment in this region since it was plainly drawn appreciably to the north of the
whole Preah Vihear promontory. Nobody looking at the map could be under any misapprehension about that.
Next, the map marked Preah Vihear itself quite clearly as lying on the Cambodian side
of the line, using for the Temple a symbol which seems to indicate a rough plan of the
building and its stairways.
It would thus seem that, to anyone who considered that the line of the watershed at
Preah Vihear ought to follow the line of the escarpment, or whose duty it was to scrutinize the
map, there was everything in the Annex 1 map to put him upon enquiry. Furthermore, as has
already been pointed out, the Siamese Government knew or must be presumed to have
known, through the Siamese members of the Mixed Commission, that the Annex 1 map had
never been formally adopted by the Commission. The Siamese authorities knew it was the
work of French topographical officers to whom they had themselves entrusted the work of
producing the maps. They accepted it without any independent investigation, and cannot
therefore now plead any error vitiating the reality of their consent. The Court concludes
therefore that the plea of error has not been made out.
The Court will now consider the events subsequent to the period 1904-1909. The
Siamese authorities did not raise any query about the Annex 1 map as between themselves
and France or Cambodia, or expressly repudiate it as such, until the 1958 negotiations in
Bangkok, when, inter alia, the question of Preah Vihear came under discussion between
Thailand and Cambodia. Nor was any question raised even after 1934-1935, when Thailand
carried out a survey of her own in this region, and this survey had, in Thailand’s view,
established a divergence between the map line and the true line of the watershed-a divergence
having the effect of placing the Temple in Cambodia. Although, after this date, Thailand
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eventually produced some maps of her own showing Preah Vihear as being in Thailand, she
continued, even for public and officia1 purposes, to use the Annex 1 map, or other maps
showing Preah Vihear as lying in Cambodia, without raising any query about the matter (her
explanations as to this will be considered presently). Moreover, the Court finds it difficult to
overlook such a fact as, for instance, that in 1937, even after Thailand’s own survey in 1934-
1935, and in the same year as the conclusion of a treaty with France in which, as will be seen,
the established common frontiers were reaffirmed, the Siamese Royal Survey Department
produced a map showing Preah Vihear as lying in Cambodia.
Thailand had several opportunities of raising with the French authorities the question of
the Annex 1 map. There were first of al1 the negotiations for the 1925 and 1937 Treaties of
Friendship, Commerce and Navigation between France, on behalf of Indo-China, and Siam.
These Treaties, although they provided for a general process of revision or replacement of
previous Agreements, excluded from this process the existing frontiers as they had been
established under the Boundary Settlements of 1893, 1904 and 1907. Thereby, and in certain
more positive provisions, the Parties confirmed the existing frontiers, whatever they were.
These were occasions (particularly in regard to the negotiations for the 1937 Treaty, which
occurred only two years after Thailand’s own survey of the frontier regions had disclosed, in
her belief, a serious divergence between the map line and the watershed line at Preah Vihear)
on which it would have been natural for Thailand to raise the matter, if she considered the
map indicating the frontier at Preah Vihear to be incorrect-occasions on which she could and
should have done so if that was her belief. She did not do so and she even, as has been seen,
produced a map of her own in 1937 showing Preah Vihear as being in Cambodia. That this
map may have been intended for internal military use does not seem to the Court to make it
any less evidence of Thailand’s state of mind. The inference must be-particularly in regard to
the 1937 occasion-that she accepted or still accepted the Annex 1 map, and the line it
indicated, even if she believed it incorrect, even if, after her own survey of 1934- 1935, she
thought she knew it was incorrect.
Thailand having temporarily come into possession of certain parts of Cambodia,
including Preah Vihear, in 1941, the Ministry of Information of Thailand published a work
entitled “Thailand during national reconstruction” in which it was stated in relation to Preah
Vihear that it had now been “retaken” for Thailand. This has been represented by Thailand as
being an error on the part of a minor official. Nevertheless, similar language, suggesting that
Thailand had been in possession of Preah Vihear only since about 1940, was used by
representatives of Thailand in the territorial negotiations that took place between Thailand
and Cambodia at Bangkok in 1958.
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 quasiofficia1 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
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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 IndoChinese 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.
The explanations regarding Prince Damrong’s visit given on behalf of Thailand have not
been found convincing by the Court. Looking at the incident as a whole, it appears to have
amounted to a tacit recognition by Siam of the sovereignty of Cambodia (under French
Protectorate) over Preah Vihear, through a failure to react in any way, on an occasion that
called for a reaction in order to affirm or preserve title in the face of an obvious rival claim.
What seems clear is that either Siam did not in fact believe she had any title-and this would be
wholly consistent with her attitude al1 along, and thereafter, to the Annex 1 map and line-or
else she decided not to assert it, which again means that she accepted the French claim, or
accepted the frontier at Preah Vihear as it was drawn on the map.
