Concluding our case at the World Court

Allow me to conclude by revisiting a value that forms the cornerstone of the Kingdom of Thailand's approach to the present as well as the original proceedings, that is "consistency".

A man looks at the ancient Preah Vihear temple, a World Heritage site and the source of political tension between Thailand and Cambodia. The International Court of Justice is expected to issue its ruling on the territorial dispute later this year. JETJARAS NA RANONG

After that, I will address another value that for us is the single most important legacy of the 1962 judgment, that is "stability and finality".

CONSISTENCY

First, Thailand has been consistent in asserting that the question of the boundary was outside the scope of the 1959 proceedings, and that the court in 1962 did not rule on the question. It was left to the parties to decide this for themselves.

To the extent that the question of a boundary was relevant in the original proceedings, for example, as proof of sovereignty over the temple, we have been consistent in our reference to the treaty criterion of the watershed.

Thus, we have consistently been asserting _ and Cambodia did not contradict this point in the original proceedings _ that the so-called "Annex I map" depicts a watershed boundary.

We have also been consistent in our belief that the real watershed leaves the temple on the Thai side. Therefore, we disagreed, and still disagree, with the 1962 judgement, but we accepted and duly implemented it.

We also maintain that [Cambodia's] request for interpretation is clearly not the right way to modify what was decided in 1962 and we certainly do not request the court to do this.

We have also been consistent, since July 10, 1962, in our position on the geographical extent of the original disputed area, or the vicinity of the temple within the meaning of the judgement. For Thailand, the records show, it has always been the cabinet line, and nothing else.

When you look to the other side of the bar, what you see is exactly the opposite. Apart from Cambodia's constant habit of hijacking our evidence for its own uses, Cambodia's positions since 1959 have been nothing but a never-ending story of inconsistencies.

INCONSISTENCY EPISODE ONE

During the original proceedings, Cambodia in 1959 asked for a ruling on sovereignty over the temple, but ended up in March 1962 asking also for a ruling on the boundary and the legal status of the Annex I map. No wonder the court expressly refused to entertain this latter request.

INCONSISTENCY EPISODE TWO

From 1959 up to the present proceedings, it appears we have been dealing with two different Cambodias _ the one we saw in the original proceedings and the one we see here today. The latter totally breaks with its past.

For instance, Cambodia in 1959 submitted a version of the Annex I map to the court, but Cambodia today submits another version of the map with a different boundary line on it.

Cambodia confirmed this fact but still could not say which one of the two lines it wants the court to look at, and to endorse in clear contradiction with the 1962 judgement.

Cambodia in 1959 was relying on a line which, according to its understanding, represented the real watershed in order to prove that the temple was on the Cambodian side. Cambodia today is relying on an artificial line in order to prove something else: the location of the boundary.

Cambodia in 1959 was basing its argument on its own line derived from its own expert report. Cambodia today is pleading on the basis of a line hijacked from Thailand's 1961 expert report, improperly diverted from its original purpose and falsified beyond recognition.

Cambodia in 1959, arguing that the Annex I map line depicted the real watershed, was using for this purpose the line on its Annex LXVIc.

Cambodia today rejects this legacy _ dismissively refers to it as "watershed material" _ to be rejected only because it undermines Cambodia's new, larger territorial claim.

Cambodia is now pleading on the basis of an arbitrarily-chosen version of the Annex I map line.

The story goes on, Mr President. Cambodia in 1962 and 1963 formally expressed satisfaction with the Thai cabinet line, as manifested on the ground by the barbed-wire fence and the signs. Cambodia today denies having had any knowledge about it until 2007.

Cambodia in 1963, at the highest level of state authority, stated that the difference between the Thai cabinet line and its claim in the original proceedings _ the Annex LXVIc line _ was only a "few metres" and was, in any case, considered to be "unimportant" and de minimis.

Cambodia today comes back to the court not to claim those few metres, but to claim a much larger area of approximately 4.5 square kilometres.

INCONSISTENCY EPISODE THREE

History repeats itself. During the present proceedings, Cambodia's claim has been a genuine shape shifter. Cambodia in April 2011 asked the court to interpret paragraph two of the dispositif. Cambodia today asks the court to interpret both paragraphs one and two, and even the link between them.

Cambodia in April 2011 appeared to be claiming the whole boundary line on the Annex I map. Cambodia now says it only focuses on the line in the disputed area.

Cambodia in its written pleadings says that facts subsequent to the judgement are not relevant except for proving there is a dispute between the parties as to the meaning or scope of the judgement.

Cambodia now invokes, long after the closure of the written proceedings, a book published by Thailand some 50 years after the judgement to prove something else _ ie an imaginary Thai claim of a new disputed area resulting from Cambodia's own claim, which in any case has nothing to do with the 1962 judgement.

To substantiate its new territorial claim, Cambodia in its written pleadings relied on a series of falsifications of Map Sheets 3 and 4 of Annex 49 to the Thai Counter-Memorial of 1961. In the oral proceedings, however, it started off by hiding those rough sketches from the court in the first round, only to end up bringing one of them back in the second. Quite confusing for the court, and for us, Mr President.

Cambodia keeps insinuating that Thailand is asking the court to correct some past error. It simply forgets that it is Cambodia who brought this case to the court, not us.

Cambodia accuses Thailand of implementing the provisional measures ordered by the court on July 18, 2011, in an "imperfect manner". It also forgets that it still has not implemented those measures itself. The reality on the ground, I must underline, is that the border is peaceful and calm, consistent with the intent of the court's order.

Cambodia, when convenient, shows a blind faith in the Thai daily Bangkok Post, quoting report after report from this newspaper in its numerous unsolicited letters sent to the court since 2011. It simply ignores on other occasions the newspaper, in particular all the reports about Thailand's effective and legitimate presence on the other side of the cabinet line well before Cambodia's recent encroachment.

Inconsistency, we can hardly deny it, Mr President, is the ultimate antithesis of stability and finality.

The court in 1962, within the limits of its jurisdiction, certainly had in mind the desire to provide a long-term settlement. In the reasoning part of the judgement, it referred to the principle of "stability and finality". This reference carries a specific meaning that can only be construed in light of the "sole dispute" submitted to the court in 1959, ie on sovereignty over the temple.

Beyond the facade of boundary settlement, which was just one of many reasons for the court's decision on that sole dispute on sovereignty, the true meaning of the reference to stability and finality is indeed to ensure a long lasting peaceful relationship between the two countries, relationship that, to use the terms of the court, is free of "uncertainty", "trouble", "friction" or "tension".

But of equal importance is what the court decided not to say.

First, the court did not say that the Annex I map has superseded the treaty. Second, it did not say that the Annex I map is a sole or independent source of obligation on the boundary, nor was it a sole or independent reason for the decision. Third, it did not say that the Annex I map line departed from the line of watershed. Fourth, it did not impose a departure from the treaty criterion of watershed, and certainly did not "refuse" the watershed to Thailand, as Cambodia only yesterday would have the court believe.

But Cambodia, since 2007, is relying precisely on what the court did not say in 1962, in order to claim more territory in the temple area than it did in the original proceedings.

For instance, Cambodia now treats the 1904 Convention as entirely superseded by the Annex I map. It now seeks, on the sole basis of the Annex I map, to impose a newly claimed boundary line that clearly departs from the natural watershed, or from any natural features for that matter.

To make matters worse, Cambodia is now claiming a version of the Annex I map line that it did not claim in the original proceedings, and that was certainly not "recognised" by the 1962 court, as it would have the court today believe.

As Thailand's expert report, and Ms Miron have demonstrated with authority, there are endless possibilities for transposing the Annex I map line to the real world. All of them, however, involve arbitrary choices of reference points, which can only be avoided if the line is transposed in accordance with the intention of the cartographer, ie by following the real watershed.

Cambodia's current transposition of the Annex I map line is necessarily arbitrary, and Cambodia cannot even explain how it was done or would be implemented in the real world. To allow it would invite more disputes between the parties rather than solve the present one.

In this light, Cambodia's spectacular about-turn, half a century after expressing satisfaction with Thailand's implementation of the judgement, is causing precisely what the court in 1962 intended to prevent, ie "uncertainty", "trouble", "friction" and "tension" in the relations between the two countries. To grant Cambodia's request today would totally undermine the "stability and finality" as addressed by the court in 1962.

Mr President, we are not asking for more than what is ours as a result of the process referred to by the court in 1962 as "treaty settlement" between France and Siam, and as a result of the 1962 judgement. Our evidence demonstrates that, since July 1962, the parties have had the same understanding of the meaning and scope of the judgement, in particular of the term "vicinity", and about what was respectively theirs pursuant to the judgement.

Thailand's primary submission is that you have no jurisdiction, or alternately that there is no ground for interpreting the 1962 judgement; thus Cambodia's request is inadmissible.

But in any event, the court in 1962 did not rule on the boundary in its dispositif; in consequence it left that question to the parties to settle between them in accordance with their treaty obligations. Nor did the court fix the limit of the vicinity of the temple. A further and beneficial consequence is that the present boundary dispute can then be dealt with and settled, as it should have been, by the Joint Boundary Commission under the Memorandum. That dispute will not be settled, and may indeed be aggravated, by disembodied references to the line on the Annex 1 map.

It is Thailand's sincere wish to come to terms with the legacy of Southeast Asia's colonial past. Cambodia and Thailand share that common past, but we also share a common future. In this light, the present proceedings may be seen as a potential for both parties to realise that vision of two Asean Community brothers living together in harmony under the rule of law. The matter before you, Mr President, members of the court, is about ensuring that the 1962 judgement is not to be distorted into doing something it did not do, and that the rule of law prevails equally for all, so that lasting peace shall also prevail.

I will now place on record Thailand's final submissions.

The Kingdom of Thailand requests the court to adjudge and declare:

- that the request of the Kingdom of Cambodia asking the court to interpret the judgement of June 15, 1962, in the case concerning the Temple of Preah Vihear (Cambodia v Thailand) under Article 60 of the Statute of the Court does not satisfy the conditions laid down in that Article and that, consequently, the court has no jurisdiction to respond to that request and/or that the request is inadmissible;

- in the alternative, that there are no grounds to grant Cambodia's request to construe the judgement and that there is no reason to interpret the judgement of 1962; and

- to formally declare that the 1962 judgement does not determine with binding force the boundary line between the Kingdom of Thailand and the Kingdom of Cambodia, nor does it fix the limit of the vicinity of the temple.


Excerpts from the concluding remarks by Virachai Plasai, the Thai ambassador to The Netherlands and head of the Thai legal team in the Preah Vihear temple case at the end of the hearings at the International Court of Justice on Friday.

About the author

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Writer: Virachai Plasai
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