Finding the Border at Preah Vihear - Part 3

Bangkok Post Cartoon, July 31, 2008.

International Law's Strengths and Weaknesses Mitigating between Sovereigns.

International Law's Strenghts

It should be understood that the original French/Siamese border demarcation was the creation of international law between two sovereign entities. Because there is no global sovereign to impose laws upon states, such border treaties are agreed between states as a matter of mutual self-interest. And despite the fact that disagreement has emerged, the struggle over Preah Vihear is still largely conducted through the mutual self-interested confines of international law. To understand the relationship between the Preah Vihear conflict and how it is being mediated by international law, the ICJ’s 1962 arbitration will be explored.

The ICJ was established in 1945 as the United Nations’ (UN) principle judicial mechanism and the court has general jurisdiction to resolve international legal disputes submitted to it on consent by states. The jurisdiction of the court is predicated upon signatory member states to the UN Charter who, under Article 93, are “ipso facto parties to the Statute of the International Court of Justice” and under Article 94, must “comply with the decisions of the International Court of Justice in any case to which it is a party”.

How the case of Preah Vihear arrived at the ICJ for adjudication was a result of Thai troops using the retreat of French colonialists around 1945 as an opportunity to assert its sovereignty over the temple. It should be noted that the temple’s location is remote to both Bangkok and Phnom Penh and there is considerable confusion as to when Thai troops or border police actually annexed the temple. This confusion can be found in the ICJ proceeding which relates a general lack of knowledge whether Thai troops occupied the temple in 1940, 1949, or 1954. This point should not be particularly surprising though. After the French demarcation and besides the previously mentioned diplomatic meeting between French colonial officers and the Thai Prince Damrong, both Thailand and Cambodia neglected to demonstrate any rituals of sovereignty over the temple and it was large abandoned by officials in what has been described as a ‘do-nothing sovereignty’ by both nations.

Yet once Thai troops began occupying the contested temple, the chaotic space between demarcated states had been exposed and revealed two contesting sovereign powers vying for control over the same space. With no higher law or global sovereign to exercise authority, the potential for violent conflict over contested territory is very real. This scenario is, indeed, a primary rational spawning international law. With two entities endowed with supreme authority within their own territories there is a need to ensure peace, or at least mitigate conflict, between the contesting sovereigns.

With the potential of armed conflict looming over ownership of Preah Vihear, both Cambodia and Thailand voluntarily submitted the conflict to the ICJ for arbitration. That both states consented to arbitration by the ICJ can be understood as a way of states cooperating and trying to create international law between the two countries. This mutual consent is essential because no international court can take jurisdiction over international disputes without the consent of the states concerned and is a reflection of the nature of the international system in which the ultimate sources of law in which a state will submit to are their own.

Such consensual submission of cases to the ICJ is also a reflection upon the courts specific type approach to finding sources of international law. In the Statute of the International Court of Justice, Article 38, sources of law are found in ‘international conventions’ and ‘international custom’ as well as ‘principles of law recognized by civilized nations’ and the ‘teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law’. This means that along with determining the law through searching established norms, the ICJ is not necessarily a law creating intuition, such as the common law determining Anglo-American courts, but a law finding court.

Such an emphasis upon finding sources of law rather than creating law can be found in the Preah Vihear case. Issues that were emphasized in the proceedings were the original border demarcation map, called Annex I, the customs of statehood such as formal meetings between representatives of both Thailand and Cambodia, and the advice of experts on demarcation. These topics can clearly be understood as analogous to subjects in Article 38. The map is analogous to ‘international conventions’, the meetings between governmental representatives parallels ‘international custom’ and the experts on border demarcation are the ‘qualified publicists’.

In regards to the value of mapping as an international convention between states, the ICJ understood the French produced map as an implied conventional agreement between Siam and France. This was because once the border was demarcated, the French order 1000 maps to be made in which they issued 50 for the Siamese government. During the intervening period before the ICJ hearing, Thailand appeared to acquiesce to the map’s accuracy and did not lodge a complaint over the fact that Preah Vihear was drawn inside the French Indochine. This has become a point of contention in the legal struggle over the temple because Thailand’s silence was interpreted by the court as concurrence with the French-drawn border and specifically as a tacit agreement with the international convention of an agreed border.

The ICJ also placed value upon interpreting the law in the international customs between governmental officials. The most significant event was a meeting between Prince Damrong, formerly the Thai Minister of the Interior, and French officials. When the Prince arrived at Preah Vihear, he was officially received by the French Resident Superior with French flag hoisted which the ICJ understood as a standard international custom between sovereign states. A clearer demonstration of ownership by the French can scarcely be imagined. It demanded action and yet Thailand did nothing. Like the Annex I map, without protest it was interpreted by the ICJ that Thailand was demonstrating tacit approval of Preah Vihear belonging in Cambodia.

The final factor, the ‘qualified publicists’ or experts, were drawn upon to interpret the technical points of the border’s actual demarcation. This reliance was articulated by one of the twelve judges, Mareno Quintana, who wrote “A layman in the matters with which the opinion of the experts was concerned as a judge generally is, he has to draw a legal conclusion from a piece of technical work which seems to carry conviction” (International Court of Justice, 1962). And such publicists, in the form of cartographers, gave testimony on the merits and accuracy of the map’s delineation. Specific issue was taken determining, with the expert’s opinions, the watershed lines and stream beds that would be used a demarcation points. And through one academic’s interpretation, such was the reliance of the court upon expert’s opinions, that the actual topographic realities surrounding Preah Vihear were convincingly misinterpreted by a cartographic expert representing Cambodia to such an extent that region’s streams and rivers reversed their course to favor a watershed line that would place the temple within Cambodian territory.

By the end of the ICJ proceedings, “The Court, by nine votes to three, finds that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia” (International Court of Justice, 1962). Through the use of conventions, customs, and experts, the ICJ interpreted international law and created what has been the most important international law concerning ownership of the temple. And although the decision remains unpopular in Thailand, and which there are various complaints over the finer points of the proceedings, the precedent has been set and Thailand has bitterly acknowledged the ruling.

Although international law may have shortcomings that will be address in the next section, the very fact that the Preah Vihear issues is a border scuffle betrays just how deeply engrained international law is. That geo-political borders are the embodiment of, and rational for, the spawning of evermore detailed and practiced international laws to mitigate conflict in the chaos between sovereign demarcated entities is almost forgotten in the haze of the law’s normality normality. The politicized globe has carved imaginative nation-states across the earth and the world of delineated states has been naturalized as though each political demarcation was an actual, incontestable, geographic reality. Preah Vihear’s ownership is not simply being fought utilizing the mechanisms of international law but is being fought because of, and through, the paradigm of approximately 400 years of legal practice and precedent. Essentially, international law has become so deeply ingrained and normalized that its basic tenets, the borders and treaties, are virtually assumed to be natural and incontestable.