Case Concerning the Temple of Preah Vihear (Cambodia v.

Thailand)
Author(s): Covey Oliver
Source: The American Journal of International Law, Vol. 56, No. 4 (Oct., 1962), pp. 1033-1053
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2195943 .
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JUDICIAL
BY

DECISIONS

COVEY OLIVER

Of the Board of Editors

Territorialtsovereignty-treaty interpretation-maps-preclusion or
estoppel
CASE

CONCERNING THE

TEMPLE

OF PREAH

VIHEAR

(CAMBODIA

V.

I.C.J. Reports,1962, p. 6.1

InternationalCourt of Justice.2 Judgmentof June 15, 1962.
THAILAND), MERITS.

In its Judgmentof 26 May 1961, by which it upheld its jurisdictionto

adjudicate upon the dispute submittedto it by the Application filedby the
Governmentof Cambodia on 6 October 1959, the Court described in the
followingtermsthe subject of the dispute:
"In the present case, Cambodia alleges a violation on the part of
Thailand of Cambodia's territorialsovereigntyover the region of the
Temple of Preah Vihear and its precincts. Thailand replies by affirmingthat the area in question lies on the Thai side of the common
frontierbetween the two countries,and is under the sovereigntyof
"
Thailand. This is a disputeabout territorialsovereignty.
Accordingly,the subject of the disputesubmittedto the Court is confined
to a differenceof view about sovereigntyover the region of the Temple
of Preah Vihear. To decide this question of territorialsovereignty,the
Court must have regard to the frontierline betweenthe two States in this
sector. Maps have been-submittedto it and various considerationshave
been advanced in this connection. The Court will have regard to each of
these only to such extentas it may findin themreasons for the decision it
has to give in orderto settlethe sole dispute submittedto it, the subject of
which has just been stated.
The Temple of Preah Vihear is an ancient sanctuaryand shrinesituated
on the borders of Thailand and Cambodia. Although now partially in
ruins,this Temple has considerableartisticand archaeologicalinterest,and
is still used as a place of pilgrimage. It stands on a promontoryof the
same name,belongingto the easternsectorof the Dangrek range of mountains which,in a general way, constitutesthe boundary between the two
countriesin this region-Cambodia to the south and Thailand to the north.
Considerableportionsof this range consist of a high cliff-likeescarpment
risingabruptlyabove the Cambodian plain. This is the situationat Preah

I Excerptedtext of opinionpreparedby Wm. W. Bishop,Jr.

2 Composedfor this case of PresidentWiniarski;Vice PresidentAlfaro; and Judges

Basdevant,Badawi, MorenoQuintana,WellingtonKoo, Sir Percy Spender,Sir Gerald

Fitzmaurice,Koretsky,Tanaka, Bustamantey Rivero,and Morelli.
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Vihear itself,wherethe main Temple buildings stand in the apex of a triangular piece of high groundjutting out into the plain. From the edge of
the escarpment,the general inclinationof the ground in the northerlydirectionis downwardsto the Nam Moun river,whichis in Thailand.
It will be apparent fromthe descriptionjust given that a frontierline
whichran along the edge of the escarpment,or whichat any rate ran to the
south and east of the Temple area, would leave this area in Thailand;
whereasa line runningto the north,or to the northand west,would place
it in Cambodia.
Thailand has urged that the edge of this escarpmentconstitutesthe natural and obviousline for a frontierin this region. In support of this view
Thailand has referredto the documentaryevidenceindicativeof the desire
of the Parties to establish frontierswhich would not only be "natural",
but visible and unmistakable-such as rivers,mountainranges, and hence
escarpments,wheretheyexist.
The desire of the Parties for a natural and visible frontiercould have
been metby almostany line whichfolloweda recognizablecourse along the
main chain of the Dangrek range. It could have been a crestline, a watershed line or an escarpmentline (wherean escarpmentexisted,whichwas far
fromalways being the case). As will be seen presently,the Parties provided for a watershedline. In so doing, they must be presumedto have
realized that such a line would not necessarily,in any particular locality,
be the same line as the line of the crestor escarpment. They cannot therefore be presumedto have intendedthat, whereveran escarpmentexisted,
the frontiermustlie along it, irrespectiveof all otherconsiderations.
The Parties have also relied on otherargumentsof a physical,historical,
religious and archaeological character,but the Court is unable to regard
themas legally decisive.
As concernsthe burden of proof, it must be pointed out that though,
fromthe formalstandpoint,Cambodia is the plaintiff,having institutedthe
proceedings,Thailand also is a claimant because of the claim which was
presentedby her in the second Submission of the Counter-Memorialand
which relates to the sovereigntyover the same piece of territory. Both
Cambodia and Thailand base theirrespectiveclaims on a series of facts and
contentionswhich are asserted or put forwardby one Party or the other.
The burden of proof in respect of these will of course lie on the Party assertingor puttingthem forward.
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 conductedby France as the protectingPower.
It is commonground betweenthe Parties that the present dispute has its
fonset origoin the boundary settlementsmade in the period 1904-1908,
betweenFrance and Siam (as Thailand was then called) and, in particular,
that the sovereigntyover Preah Vihear depends upon a boundary treaty
dated 13 February 1904, and upon events subsequent to that date. The
Court is thereforenot called upon to go into the situation that existed
betweenthe Parties prior to the Treaty of 1904.

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The relevantprovisionsof the Treaty of 13 February 1904, which regulated interalia the frontierin the easternDangrek region,were as follows:
[Translationr
by the Registry]
"Article 1
The frontierbetweenSiam and Cambodia starts,on the left shore of
the Great Lake, fromthe mouthof the river Stung Roluos, it follows
the parallel fromthat point in an easterlydirectionuntil it meetsthe
river Prek Kompong Tiam, then,turningnorthwards,it mergeswith
the meridian fromthat meeting-pointas far as the Pnom Dang Rek
mountain chain. From there it follows the watershed between the
basins of the Nam Sen and the Mekong,on the one hand, and the Nam
Moun,on the otherhand, and joins the Pnom Padang chain the crestof
whichit followseastwardsas far as the Mekong. Upstreamfromthat
point, the Mekong remains the frontierof the Kingdom of Siam, in
accordancewith Article 1 of the Treaty of 3 October1893."
"Article 3
There shall be a delimitationof the frontiersbetweenthe Kingdom
of Siam and the territoriesmaking up French Indo-China. This delimitationwill be carried out by Mixed Commissionscomposedof officers appointed by the two contractingcountries. The work will relate
to the frontierdeterminedby Articles 1 and 2, and the region lying
betweenthe Great Lake and the sea."
It will be seen, in the firstplace, that these articlesmake no mentionof
Preah Vihear as such. It is for this reason that the Court can only give a
decision as to the sovereigntyover the Temple area after having examined
what the frontierline is. Secondly,whereas the general characterof the
frontierestablishedby Article 1 was, along the Dangrek range, to be a
watershedline, the exact course of this frontierwas, by virtue of Article 3,
to be delimited by a Franco-Siamese Mixed Commission. It is to be
observed,moreover,that what had to be delimitedwas "the frontiers"between Siam and French Indo-China; and although this delimitationhad,
prima facie, to be carried out by referenceto the criterionindicated in
Article 1, the purpose of it was to establishthe actual line of the frontier.
In consequence,the line of the frontierwould, to all intentsand purposes,
be the line resultingfromthe work of delimitation,unless the delimitation
were shownto be invalid.
In due course, a Mixed Commissioncomposed of French and Siamese
memberswas set up, charged with the task of delimitingthe frontierin
various districts,including the eastern sector of the Dangrek range in
whichPreah Vihear is situated. This Mixed Commissionwas composedof
two sections,one French and one Siamese, sittingtogether-one consisting
of French topographicaland administrativeofficers
under a French president,and the otherof Siamese membersunder a Siamese president. So far
as the frontierin the Dangrek range was concerned,the task of this Mixed
Commissionwas confinedto the easternsector (roughlyeast of the Pass of
Kel) in whichPreah Vihear is situated. At this timethe westernsectorof
the Dangrek lay whollyin Thailand. It was only when a furtherboundary
under a treatydated 23 March 1907, broughtwithinCambodia
settlement,

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various districtsabutting on the westernDangrek sector,that the latter

became a frontierregion. The task of delimitingthe frontierin this latter
region was given to a second Mixed Commissionset up under the 1907
Treaty.
The Mixed Commissionset up under the Treaty of 1904 held its first
meetingin January1905, but did not reach that part of its operationsthat
concernedthe frontieralong the easternsectorof the Dangrek range until
December1906, althoughit appears fromthe minutesof the Commission's
meetingof 2 December 1906 that one of the French membersof the Commission,Captain Tixier, had passed along the Dangrek in February 1905.
At the meetingof 2 December1906, held at Angkor-Wat,it was agreed that
the Commissionshould ascend the Dangrek fromthe Cambodian plain by
the Pass of Kel, whichlies westwardsof Preah Vihear, and travel eastwards
along the range by the same route (or along the same line) as had been
reconnoitredby Captain Tixier in 1905 ("le trace qu'a reconnu . . . le
capitaine Tixier"). It was stated that all the necessaryreconnaissancebetweenthis route and the crestline (to whichit ran roughlyparallel) could
be carriedout by this method,since the route was, at the most,only ten to
fifteenkilometresfromthe crest,on the Siamese side. It has not been contestedthat the Presidentsof the French and Siamese sectionsof the Commission,as representingit, duly made this journey,and that in the course
of it theyvisited the Temple of Preah Vihear. But there is no record of
any decision that they may have taken.
At this same meetingof 2 December 1906, it was also agreed that another of the membersof the French section of the Commission,Captain
Oum, should,startingat the eastern end, survey the whole of the eastern
part of the Dangrek range, in which Preah Vihear is situated,and that he
would leave for this purpose the next day.
It is thus clear that the Mixed Commissionfully intendedto delimitthe
frontierin this sector of the Dangrek and that it took all the necessary
steps to put the work of delimitationin hand. The work must have been
accomplished,for at the end of January1907 the French Ministerat Bangkok reportedto the Ministerof Foreign Affairsin Paris that he had been
formallynotifiedby the Presidentof the French sectionof the Mixed Commissionthat the whole work of delimitationhad been finishedwithoutincident, and that the frontierline had been definitelyestablished,except in
the regionof Siem Reap. Furthermore,in a reporton the whole work of
the
delimitation,dated 20 February 1907, destinedforhis own Government,
Presidentsaid that: "All along the Dangrek and as far as the Mekong,the
fixingof the frontiercould not have involved any difficulty." Mention
may also be made of a map producedby Thailand, recentlyprepared by the
Royal Thai Survey Department, Bangkok, tracing in the Dangrek the
"Route followedby the Mixed Commissionof 1904".
It seems clear thereforethat a frontierwas surveyedand fixed; but the
question is what was that frontier(in particular in the region of Preah
Vihear), by whomwas it fixed,in what way, and upon whose instructions?
in answeringthese questionslies in the fact that, after the
Tlhedifficulty

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minutesof the meetingof the First Commissionon 2 December 1906, there

is no furtherreferencewhatever,in any minutesof later meetings,to the
questionof the frontierin the Dangrek region.
It appears that at about this time the Commissionhad in substance
finishedits work on the ground and was awaiting the reports and provisional maps of the surveyofficers
(Captain Oum and others). These reports
and maps would not be available until February-March1907 when,in normal circumstances,another meeting of the Commissionwould have been
held to considerthem. It appears that a meetinghad been provisionally
fixedfor 8 March. That it was certainlythe intentionto call one, can be
seen froma despatchfromthe French Ministerin Bangkok to the Minister
of Foreign Affairsin Paris, dated 23 February 1907, coveringthe report
fromColonel Bernard, President of the French sectionof the Commission.
The Minister,in his despatch,said: "The maps indicatingthe frontiercan
be broughtup to date in a fairlyshorttime and the plenarymeetingof the
French and Siamese Commissioners
will probablybe held before15 March."
No meetingapparentlyever took place. In the meantimethe two Governmentshad enteredinto negotiationsfor a furtherboundary treaty. This
treatywas signed on 23 March 1907, and provided for exchangesof territoryand a comprehensive
regulationof all thosefrontiersnot coveredby the
previoustreatysettlementof 1904.
A second Mixed Commissionof Delimitationwas then set up under the
Treaty of 1907. As already mentioned,part of its task was to delimitthat
sectorof the Dangrek regionnot having comewithinthe ambit of the First
Commission,namelyfromthe Pass of Kel westwards,and thereforenot including Preah Vihear whichlay to the east. There was in fact some overlapping of theworkof the two Commissionsin the Kel region,but this overlapping did not extendto Preah Vihear. There is, however,evidencein the
recordsof the Second Commissionthat,at or near the Pass of Kel, the line
drawn by this Commissionjoined up with an already existingline proceeding eastwardsto the Temple area and beyond. There is no definiteindication as to what this line was, or how it had come to be established; but the
presumptionthat it was in somemanneror otherthe outcomeof the survey
workwhichthe First Commissionhad put in hand, and whichthe President
of its French section,in his reportof 20 February 1907, stated to have been
accomplishedwithout difficultyis, in the circumstances,overwhelmingly
strong. The Court has notedthat although,under Article IV of the Treaty
of 1907, the task of the Second Mixed Commissionwas to delimitthe "new
frontiers" establishedby that Treaty, the Commissionalso had the task,
under Clause III of the Protocol attached to the Treaty, of delimitingall
that part of the frontierdefinedin Clause I of the Protocol. This latter
provisionrelated to the entireDangrek range froma point in its western
half to the eastern continuationof the Dangrek, the Pnom Padang range,
as far as the River Mekong. Therefore,had the easternDangrek and Pnom
Padang sectorsnot already been delimitedby the first(1904) Mixed Commission,it would have been the duty of the second (1907) Commissionto
do this work. This Commissiondid not do it, apart fromthe overlap (not

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extending to Preah Vihear) already mentioned,and thereforethe presumptionmustbe that it had already been done.
The First Mixed Commissionapparentlydid not hold any formalmeeting after 19 January 1907. It must not be forgottenthat, at the time
when such a meetingmighthave been held for the purpose of windingup
theworkof the Commission,attentionin bothcountries,on the part of those
who were specially qualifiedto act and speak on theirbehalf in these matters,was directedtowardsthe conclusionof the Treaty of 23 March 1907.
Their chief concern,particularly in the case of Colonel Bernard, could
hardly have been the formal completionof the results of the delimitation
theyhad carriedout.
The finalstage of the operationof delimitationwas the preparationand
publicationof maps. For the executionof this technicalwork,the Siamese
Government,which at that time did not dispose of adequate means, had
officiallyrequested that French topographical officersshould map the
-frontier
region. It is clear fromthe openingparagraph of the minutesof
the meetingof the First Mixed Commissionon 29 November1905 that this
request had the approval of the Siamese sectionof the Commission,which
may indeed have inspired it, for in the letterof 20 August 1908 in which
the Siamese Ministerin Paris communicatedto his Governmentthe eventual
resultsof this work of mapping,he referredto "the Mixed Commissionof
Delimitationof the frontiersand the Siamese Commissioners'request that
the French Commissionersprepare maps of various frontiers". That this
was the deliberatepolicy of the Siamese authoritiesis also shown by the
fact that in the Second (1907) Mixed Commission,the French membersof
the Commissionwere equally requestedby theirSiamese colleaguesto carry
out cartographicalwork,as can be seen fromthe minutesof the meetingof
6 June 1908.
The French Governmentduly arrangedforthe workto be done by a team
threeof whom,Captains Tixier,Kerler and de Batz,
of fourFrench officers,
had been membersof the First Mixed Commission.This team workedunder
the general directionof Colonel Bernard,and in the late autumnof 1907 it
completeda series of elevenmaps coveringa large part of the frontiersbetween Siam and French Indo-China,includingthose portionsthat are material in the present case. The maps were printed and published by a
well-knownFrench cartographicalfirm,H. Barrere.
The eleven maps were in due course communicatedto the Siamese Government,as beingthe maps requestedby the latter,and the Court will consider later the circumstancesof that communicationand the deductionsto
be drawn fromit. Three of the maps had been overtakenby events,inasmuch as the formerfrontierareas theyshowedhad, by virtueof the Treaty
of March 1907, now become situated wholly in Cambodia. Siam was not
thereforecalled upon eitherto accept or reject them. Her interestin the
othermaps romained. Amongstthesewas one of that part of the Dangrek
range in whichthe Temple is situated,and on it was traced a frontierline
purportingto be the outcomeof the work of delimitationand showingthe
whole Preah Vihear promontory,with the Temple area, as being on the

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Cambodian side. If thereforethe delimitationcarried out in respectof the

easternDangrek sectorestablishedor was intendedto establisha watershed
line, this map purportedto show such a line. This map was filedby Cambodia as Annex I to its Memorial,and has becomeknownin the case (and
will be referredto herein) as the Annex I map.
It is on thismap that Cambodia principallyrelies in supportof her claim
to sovereigntyover the Temple. Thailand, on the otherhand, contestsany
claim based on this map, on the followinggrounds: first,that the map was
not the workof the Mixed Commission,and had thereforeno binding character; secondly,that at Preah Vihear the map embodieda material error,
not explicableon thebasis of any exerciseof discretionarypowersof adaptation which the Commissionmay have possessed. This error,according to
Thailand's contention,was that the frontierline indicated on the map was
not the true watershedline in this vicinity,and that a line drawn in accordance with the true watershedline would have placed, and would now
place, the Temple area in Thailand. It is furthercontendedby Thailand
that she neveraccepted this map or the frontierline indicatedon it, at any
rate so far as Preah Vihear is concerned,in such a way as to becomebound
thereby; or, alternativelythat, if she did accept the map, she did so only
under, and because of, a mistakenbelief (upon which she relied) that the
map line was correctlydrawnto correspondwith the watershedline.
The Court will, for the moment,confineitself to the firstof these contentions,based on an argumentwhich the Court considers to be correct,
namelythat the map was neverformallyapproved by the First Mixed Commissionas such,since that Commissionhad ceased to functionsomemonths
beforethe productionof the map. The record does not show whetherthe
map and the line were based on any decisionsor instructionsgiven by the
Commissionto the surveyingofficers
while it was still functioning. What
is certainis that the map musthave had a basis of somesort,and the Court
thinkstherecan be no reasonabledoubtthat it was based on the workof the
in the Dangrek sector. Being one of the series of maps of
surveyingofficers
the frontierareas produced by French Governmenttopographicalexperts
in responseto a requestmade by the Siamese authorities,printedand published by a Paris firmof repute,all of whichwas clear fromthe map itself,
it was thus investedwith an officialstanding; it had its own inherenttechnical authority;and its provenancewas open and obvious. The Courtmust
neverthelessconclude that, in its inception, and at the moment of its
production,it had no bindingcharacter.
Thailand has argued that in the absenceof any delimitationapprovedand
adopted by the Mixed Commission,or based on its instructions,the line of
the frontiermust necessarily-by virtue of Article 1 of the Treaty of 1904
followstrictlythe line of the true watershed,and that this line, at Preah
Vihear, would place the Temple in Thailand. While admittingthat the
Mixed Commissionhad a certain discretionto depart fromthe watershed
line in orderto avoid anomalies,and to take account of certainpurely local
considerations,Thailand contends that any departure such as to place
Preah Vihear in Cambodia would have far exceeded the scope of any dis-

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cretionarypowers the Mixed Commissioncould have had authority to

exercisewithoutspecificreferenceto the Governments.
Whatever substance these contentionsmay have, taken by themselves,
the Court considersthat they do not meet the real issues here involved.
Even if therewas no delimitationof the frontierin the eastern sector of
the Dangrek approved and adopted by the Mixed Commission,it was obviouslyopen to the Governments
themselvesto adopt a delimitationfor that
region,makinguse of the workof the technicalmembersof the Mixed Commission. As regards any departures fromthe watershedline which any
such delimitationembodied-since, accordingto Thailand's own contention,
the delimitationindicatedon the Annex I map was not the Mixed Commission's-there is no point in discussingwhethersuch departuresas may have
occurredat Preah Vihear fell withinthe Commission'sdiscretionarypowers
or not. The point is that it was certainlywithinthe power of the Governmentsto adopt such departures.
The real question, therefore,which is the essential one in this case, is
whetherthe Parties did adopt the Annex I map, and the line indicated on
it, as representingthe outcomeof the work of delimitationof the frontier
in the regionof Preah Vihear, therebyconferringon it a bindingcharacter.
Thailand denies this so far as she is concerned,representingherselfas
having adopted a merelypassive attitude in what ensued. She maintains
also that a course of conduct,involvingat most a failure to object, cannot
sufficeto render her a consentingparty to a departure at Preah Vihear
fromthe watershedline specifiedby Article 1 of the Treaty of 1904, so
great as to affectthe sovereigntyover the Temple area.
The Court sees the matterdifferently.It is clear fromthe record that
the publicationand communicationof the eleven maps referredto earlier,
including the Annex I map, was somethingof an occasion. This was no
mere interchangebetweenthe French and Siamese Governments,though,
even if it had been,it could have sufficedin law. On the contrary,the maps
were given wide publicity in all technicallyinterestedquarters by being
also communicatedto the leading geographicalsocietiesin importantcountries, and to other circles regionallyinterested; to the Siamese legations
accreditedto the British,German,Russian and United States Governments;
and to all themembersof the Mixed Commission,French and Siamese. The
full original distributionconsistedof about one hundred and sixty sets of
eleven maps each. Fifty sets of this distributionwere allocated to the
Siamese Government. That the Annex I map was communicatedas purportingto representthe outcomeof the work of delimitationis clear from
the letter fromthe Siamese Ministerin Paris to the Minister of Foreign
Affairsin Bangkok,dated 20 August 1908, in which he said that "regarding the Mixed Commissionof Delimitationof the frontiersand the Siamese
Commissioners'request that the French Commissionersprepare maps of
various frontiers,
the French Commissioners
have now finishedtheirwork".
He added that a series of maps had been broughtto him in order that he
mightforwardthemto the Siamese Ministerof Foreign Affairs. He went
on to give a list of the eleven maps, includingthe map of the Dangrek re-

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gion-fifty sheets of each. He ended by saying that he was keeping two

sheets of each map for his Legation and was sending one sheet of each
to the Legations in London, Berlin, Russia and the United States of
America.
It has been contendedon behalf of Thailand that this communicationof
the maps by the French authoritieswas, so to speak, ex parte, and that no
of it was eitherrequestedof,or givenby, Thailand.
formalacknowledgment
In fact, as will be seen presently,an acknowledgmentby conduct was undoubtedlymade in a very definiteway; but even if it were otherwise,it is
clear that the circumstanceswere such as called for some reaction,withina
reasonableperiod,on the part of the Siamese authorities,if theywished to
disagreewith the map or had any serious questionto raise in regard to it.
They did not do so, either then or for many years, and therebymust be
held to have acquiesced. Qui tacet consentirevidetur si loqui debuqisset
ac potuisset.
So far as the Annex I map is concerned,it was not merelythe circumof thisand the othermaps that called forsome
stancesof the communication
reactionfromthe Siamese side, if reactiontherewas to be; therewere also
indicationson the face of the map sheet which required a reaction if the
Siamese authoritieshad any reason to contendthat the map did not represent the outcomeof the workof delimitation. The map-together with the
othermaps-was, as already stated,communicatedto the Siamese members
of the Mixed Commission. These must necessarily have known (and
throughthem the Siamese Governmentmust have known) that this map
could not have representedanythingformallyadopted by the Mixed Commission,and thereforethey could not possibly have been deceived by the
title of the map, namely,"Dangrek-Commission of Delimitationbetween
Indo-China and Siam" into supposing that it was purportingto be a production of the Mixed Commissionas such. Alternatively,if the Siamese
membersof the Commissiondid suppose otherwise,this could only have
been because, thoughwithoutrecordingthem,the Mixed Commissionhad
in fact taken some decisionson whichthe map was based; and of any such
decisions the Siamese membersof the Commissionwould of course have
been aware.
The Siamese membersof the Commissionmust also have seen the notice
appearing in the top left-handcornerof the map sheet to the effectthat
the workon the groundhad been carried out by Captains Kerler and Oum.
They would have known,since theywere presentat the meetingof the Commission held on 2 December 1906, that Captain Oum had then been instructedto carryout the surveyof the easternsectorof the Dangrek range,
coveringPreah Vihear,and that he was to leave the next day to take up this
assignment. They said nothing-either then or later-to suggest that the
map did not representthe outcomeof the workof delimitationor that it was
in any way inaccurate.
That the Siamese authoritiesby their conductacknowledgedthe receipt,
and recognizedthe character,of these maps, and what they purportedto
represent,is shown by the action of the Minister of the Interior,Prince

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Damrong,in thankingthe French Ministerin Bangkokforthe maps, and in

askinghimforanotherfifteencopies of each of themfor transmissionto the
Siamese provincialGovernors.
Further evidenceis affordedby the proceedingsof the subsequentCommissionof Transcriptionwhichmet in Bangkok in March of the following
year, 1909, and for some monthsthereafter. This was a mixed FrancoSiamese Commissionset up by the Parties with the object of gettingan
officialSiamese geographicalservicestarted,througha consolidationof all
the workof the two Mixed Commissionsof 1904 and 1907. A primaryaim
was to convertthe existingmaps into handy atlas form,and to give the
French and Siamese termsused in them their proper equivalents in the
other languages. No suggestionthat the Annex I map or line was unacceptablewas made in the courseof the workof this Commission.
It was claimed on behalf of Thailand that the maps receivedfromParis
who had no experiencein cartography,and
were onlyseen by minorofficials
would know nothingabout the Temple of Preah Vihear. Indeed it was
suggestedduringthe oral proceedingsthatno one in Siam at that timeknew
anythingabout the Temple or would be troublingabout it.
The Court cannotaccept these contentionseitheron the facts or the law.
they
If the Siamese authoritiesdid show these maps only to minorofficials,
clearlyacted at theirown risk,and the claim of Thailand could not, on the
internationalplane, derive any assistance fromthat fact. But the history
of the matter,as set out above, shows clearly that the maps were seen by
such personsas Prince Devawongse,the Foreign Minister,Prince Damrong,
the Ministerof the Interior,the Siamese membersof the First Mixed Commission,the Siamese membersof the Commissionof Transcription;and it
must also be assumed that the Annex I map was seen by the Governorof
Khukhan province,the Siamese provinceadjoining the Preah Vihear region
on the northernside, who must have been amongstthose 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
knowledgeof the Dangrek region. It is clear fromthe documentationin
the case that Prince Damrong took a keen personal interestin the work of
delimitation,and had a profoundknowledgeof archaeologicalmonuments.
It is not conceivable that the Governorof Khukhan province, of which
Preah Vihear formedpart up to the 1904 settlement,was ignorant of its
existence.
In any case this particular contentionof Thailand's is decisively disproved by a documentdeposited by Thailand herself,according to which
the Temple was in 1899 "re-discovered" by the Siamese Prince Sanphasit,
accompaniedby somefifteento twentyofficialsand local dignitaries,including, it seems, the then Governorand Deputy-Governorof Khukhan. It
thus appears that only nine years previous to the receipt of the Annex I
map by the Siamese authorities,a considerablenumberof persons having
high officialstandingin Siam knew of Preah Vihear.
The Court moreoverconsidersthat there is no legal foundationfor the
consequenceit is attemptedto deduce fromthe fact that no one in Thailand
at that timemay have knownof the importanceof the Temple or have been

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cannotin law be claimed on the

troublingabout it. Frontierrectifications
to
out
have an importancenot known
groundthat a frontierarea has turned
or suspectedwhenthe frontierwas established.
It followsfromthe precedingfindingsthat the Siamese authoritiesin due
coursereceivedthe Annex I map and that theyaccepted it. Now, however,
it is contendedon behalf of Thailand, so far as the disputed area of Preah
Vihear is concerned,that an error was committed,an error of whlichthe
Siamese authoritieswere unaware at the timewhen theyaccepted the map.
It is an establishedrule of law that the plea of errorcannotbe allowed as
an elementvitiating consentif the party advancing it contributedby its
own conductto 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
considersthat the characterand qualificationsof the personswho saw the
Annex I map on the Siamese side would alone make it difficultfor Thailand to plead error in law. These persons included the membersof the
veryCommissionof Delimitationwithinwhosecompetencethis sectorof the
frontierhad lain. But even apart fromthis, the Court thinksthat there
were othercircumstancesrelatingto the Annex I map whichmake the plea
to receive.
of errordifficult
An inspectionindicatesthatthe map itselfdrew such pointedattentionto
the Preah Vihear regionthatno interestedperson,nor anyone chargedwith
the duty of scrutinizingit, could have failed to see what the map was purportingto do in respect of that region. If, as Thailand has argued, the
of the place is such as to make it obviousto anygeographicalconfiguration
one who has been there that the watershedmust lie along the line of the
escarpment(a fact which,if true,musthave been no less evidentin 1908),
then the map made it quite plain that the Annex I line did not followthe
escarpmentin this region since it was plainly drawn appreciably to the
northof the whole Preah Vihear promontory. Nobody lookingat the map
could be under any misapprehensionabout that.
Next, the map marked Preah Vihear itself quite clearly as lying on the
Cambodian side of the line, using for the Temple a symbolwhich seems to
indicate a rough plan of the building and its stairways.
It would thus seem that, to anyone who consideredthat the line of the
watershedat Preah Vihear ought to follow the line of the escarpment,or
whoseduty it was to scrutinizethe map, therewas everythingin the Annex
I map to put himupon enquiry. Furthermore,as has already been pointed
out, the Siamese Governmentknew or must be presumed to have known,
throughthe Siamese membersof the Mixed Commission,that the Annex I
map had never been formallyadopted by the Commission. The Siamese
to whom
authoritiesknew it was the work of French topographicalofficers
theyhad themselvesentrustedthe work of producingthe maps. They accepted it withoutany independentinvestigation,and cannot thereforenow
plead any errorvitiatingthe realityof theirconsent. The Court concludes
thereforethat the plea of errorhas not been made out.
The Court will now considerthe events subsequentto the period 19041909.
The Siamese authoritiesdid not raise any query about the Annex I map

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as betweenthemselvesand France or Cambodia, or expresslyrepudiate it

as such,until the 1958 negotiationsin Bangkok,when,inter altia,the question of Preah Vihear came under discussionbetween Thailand and Cambodia. Nor was any question raised even after 1934-1935, when Thailand
carriedout a surveyof her own in this region,and this surveyhad, in Thailand's view, establisheda divergencebetween the map line and the true
line of thewatershed-a divergencehaving the effectof placing the Temple
in Cambodia. Although, after this date, Thailand eventually produced
some maps of her own showing Preah Vihear as being in Thailand, she
continued,even for public and officialpurposes,to use the Annex I map,
or othermaps showingPreah Vihear as lying in Cambodia,withoutraising
any query about the matter (her explanationsas to this will be considered
presently). Moreover,the Court findsit difficultto overlooksuch a fact
as, for instance,that in 1937, even after Thailand's own survey in 19341935, and in the same year as the conclusionof a treatywith France in
which, as will be seen, the establishedcommonfrontierswere reaffirmed,
the Siamese Royal Survey Department produced a map showing Preah
Vihear as lying in Cambodia.
Thailand had several opportunitiesof raisingwiththe French authorities
the questionof the Annex I map. There were firstof all the negotiations
for the 1925 and 1937 Treaties of Friendship, Commerceand Navigation
betweenFrance, on behalf of Indo-China, and Siam. These Treaties, althoughthey provided for a general process of revision or replacementof
previous Agreements,excluded fromthis process the existingfrontiersas
they had been establishedunder the Boundary Settlementsof 1893, 1904
and 1907. Thereby,and in certain more positive provisions,the Parties
confirmed
the existingfrontiers,whatevertheywere. These were occasions
(particularlyin regard to the negotiationsfor the 1937 Treaty,which occurred only two years after Thailand's own surveyof the frontierregions
had disclosed,in her belief,a serious divergencebetweenthe map line and
the watershedline at Preah Vihear) on which it would have been natural
for Thailand to raise the matter,if she consideredthe map indicatingthe
frontierat Preah Vihear to be incorrect-occasionson whichshe could and
should have done so if that was her belief. She did not do so and she even,
as has been seen,produceda map of her own in 1937 showingPreah Vihear
as being in Cambodia. That this map may have been intendedfor internal
militaryuse does not seem to the Court to make it any less evidence of
Thailand's state of mind. The inferencemust be-particularly in regard
to the 1937 occasion-that she accepted or still accepted the Annex I map,
and the line it indicated,even if she believed it incorrect,even if, afterher
own surveyof 1934-1935,she thoughtshe knew it was incorrect.
Thailand having temporarilycome into possession of certain parts of
Cambodia, including Preah Vihear, in 1941, the Ministryof 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 representedby Thailand
as being an erroron the part of a minorofficial. Nevertheless,similarlan-

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guage, suggestingthat Thailand had been in possession of Preah Vihear

only since about 1940,was used by representativesof Thailand in the territorial negotiationsthat took place between Thailand and Cambodia at
Bangkok in 1958.
Afterthewar,by a SettlementAgreementof November1946 withFrance,
Thailand accepted a reversionto the status quo ante 1941. It is Thailand's
contentionthat this reversionto the status quo did not affectPreah Vihear
because Thailand already had sovereigntyover it before the war. The
Court need not discuss this contention,for whetherThailand did have such
sovereigntyis preciselywhat is in issue in these proceedings. The important point is that,in consequenceof the war events,France agreed to set up
a Franco-SiameseConciliationCommissionconsistingof the two representawhose termsof refertives of the Parties and threeneutral Commissioners,
on an equitable
ence were specificallyto go into,and make recommendations
basis in regard to, any complaintsor proposalsfor revisionwhich Thailand
mightwish to make as to, inter altia,the frontiersettlementsof 1904 and
1907. The Commissionmet in 1947 in Washington,and here thereforewas
an outstandingopportunityfor Thailand to claim a rectificationof the
frontierat Preah Vihear on the ground that the delimitationembodieda
seriouserrorwhichwould have caused Thailand to reject it had she known
of the error in 1908-1909. In fact, although Thailand made complaints
about the frontierline in a considerablenumberof regions,she made none
about Preah Vihear. She even (12 May 1947) filedwith the Commissiona
map showingPreah Vihear as lying in Cambodia. Thailand contendsthat
this involvedno adverse implicationsas regards her claim to the Temple,
because the Temple area was not in issue beforethe Commission,that it was
otherregionsthatwere under discussion,and that it was in relationto these
that the map was used. But it is precisely the fact that Thailand had
raised these otherquestions,but not that of Preah Vihear, which requires
explanation; for, everythingelse apart, Thailand was by this time well
aware, fromcertainlocal happeningsin relationto the Temple,to be mentionedpresently,that France regardedPreah Vihear as being in Cambodian
territory-evenif thishad not already and long since been obviousfromthe
frontierline itself,as mapped by the French authoritiesand communicated
to the Siamese Governmentin 1908. The natural inferencefromThailand's
failureto mentionPreah Vihear on this occasion is, again, that she did not
do so because she accepted the frontierat this point as it was drawn on the
map, irrespectiveof its correspondencewiththe watershedline.
As regardsthe use of a map showingPreah Vihear as lying in Cambodia,
Thailand maintains that this was for purely cartographicalreasons, that
therewere no othermaps, or none that were so convenient,or none of the
rightscale for the occasion. The Court does not findthis explanationconvincing. Thailand could have used the map but could also have entered
some kind of reservationwith France as to its correctness. This she did
not do.
As regardsher failure even to raise the questionof the map as such until
1958, Thailand states that this was because she was, at all material times,

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in possessionof Preah Vihear; thereforeshe had no need to raise the matter. She indeed instancesher acts on the groundas evidencethat she never
accepted the Annex I line at Preah Vihear at all, and contendsthat if she
never accepted it she clearly had no need to repudiate it, and that no adverse conclusionscan be drawn fromher failureto do so. The acceptability
of this explanationmust obviouslydepend on whetherin fact it is the case
that Thailand's conducton the ground affordsex post facto evidence sufficient to show that she never accepted the Annex I line in 1908 in respect
of Preah Vihear, and consideredherselfat all material times to have the
sovereigntyover the Temple area.
The Court has consideredthe evidencefurnishedby Thailand of acts of
an administrativecharacter performedby her officialsat or relative to
Preah Vihear. France, and subsequentlyCambodia, in view of her title
foundedon the Treaty of 1904, performedonly a very few routineacts of
administrationin this small, desertedarea. It was specificallyadmittedby
Thailand in the course of the oral hearingthat if Cambodia acquired sovereigntyoverthe Temple area by virtueof the frontiersettlementof 1904, she
did not subsequentlyabandon it, nor did Thailand subsequentlyobtain it
by any process of acquisitive prescription. Thailand's acts on the ground
were thereforeput forwardas evidence of conduct as sovereign,sufficient
to negativeany suggestionthat,under the 1904 Treaty settlement,Thailand
accepted a delimitationhavingthe effectof attributingthe sovereigntyover
Preah Vihear to Cambodia. It is thereforefromthis standpointthat the
Court must considerand evaluate these acts. The real questionis whether
to effaceor cancel out the clear impressionof acceptanceof the
theysufficed
frontierline at Preah Vihear to be derivedfromthe various considerations
already discussed.
With one or two importantexceptionsto be mentionedpresently,the acts
concernedwere exclusivelythe acts of local, provincial,authorities. To the
extentthattheseactivitiestookplace, it is not clear that theyhad reference
to the summitof Mount Preah Vihear and the Temple area itself,rather
than to places somewherein the vicinity. But howeverthat may be, the
to regardsuch local acts as overridingand negativing
Courtfindsit difficult
the consistentand undeviatingattitude of the central Siamese authorities
to the frontierline as mapped.
In this connection,much the most significantepisode consisted of the
visit paid to the Temple in 1930 by Prince Damrong,formerlyMinisterof
the Interior,and at this time President of the Royal Institute of Siam,
charged with duties in connectionwith the National Library and with
archaeological monuments. The visit was part of an archaeological tour
made by the Prince withthe permissionof the King of Siam, and it clearly
character. When the Prince arrived at Preah Vihear,
had a quasi-official
received there by the French Resident for the adjoining
he was officially
Cambodian province,on behalf of the Resident Superior,with the French
flag flying. The Prince could not possibly have failed to see the implicaof title on the
tions of a receptionof this character. A clearer affirmation
French Indo-Chineseside can scarcely be imagined. It demanded a reac-

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tion. Thailand did nothing. Furthermore,when Prince Damrong on his

returnto Bangkok sent the French Resident some photographsof the occasion, he used language which seems to admit that France, throughher
Resident,had acted as the host country.
The explanationsregarding Prince Damrong's visit given on behalf of
Thailand have not been found convincingby the Court. Looking at the
incidentas a whole,it appears to have amountedto a tacit recognitionby
Siam of the sovereigntyof Cambodia (under French Protectorate) over
Preah Vihear, througha failure to react in any way, on an occasion that
called for a reaction in order to affirmor preservetitle in the face of an
obvious rival claim. What seems clear is that eitherSiam did not in fact
believe she had any title-and this would be whollyconsistentwith her attitude all along, and thereafter,to the Annex I map and line-or else she
decided not to assert it, which again means that she accepted the French
claim,or acceptedthe frontierat Preah Vihear as it was drawn on the map.
The remainingrelevant facts must now be stated. In February 1949,
not long after the conclusion of the proceedings of the Franco-Siamese
ConciliationCommission,in the course of which,as has been seen, Thailand
did not raise the questionof Preah Vihear, France addressed a Note to the
Governmentof Thailand stating that a report had been received of the
stationingof four Siamese keepersat the Temple, and asking for information. There was no reply to this note, nor to a follow-upNote of March
1949. In May 1949, France sent a furtherNote, setting out briefly,but
quite explicitly,the groundson whichshe consideredPreah Vihear to be in
Cambodia,and pointingout that a map produced by Thailand herselfhad
recognizedthis fact. The withdrawal of the keepers was requested. Althoughthere was an error in this Note, the significanceof the latter was
that it contained an unequivocal assertion of sovereignty. This French
Note also receivedno reply. In July 1950, a furtherNote was sent. This
too remainedunanswered.
In thesecircumstancesCambodia,on attainingher independencein 1953,
proposed, for her part, to send keepers or guards to the Temple, in the
assertion or maintenance of her position. However, findingthat Thai
keeperswere alreadythere,the Cambodiankeeperswithdrew,and Cambodia
sent a Note dated January1954 to the Governmentof Thailand asking for
but no explanation.
information. This received a mere acknowledgment,
of Thailand's claim. At
Nor was there,even then,any formalaffirmation
the end of March 1954, the Governmentof Cambodia, drawingattentionto
the fact that no substantivereply to its previous Note had been received,
notifiedthe Governmentof Thailand that it now proposed to replace the
previouslywithdrawnCambodian keepers or guards by some Cambodian
troops. In this Note Cambodia specificallyreferredto the justificationof
the Cambodian claim contained in the French Note of May 1949. This
Cambodian Note also was not answered. However, the Cambodian troops
were not in fact sent; and in June 1954, Cambodia addressedto Thailand a
furtherNote statingthat,as informationhad been receivedto the effectthat
Thai troops were already in occupation,the despatch of the Cambodian

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troops had been suspended in order not to aggravate the situation. The
Note went on to ask that Thailand should either withdrawher troops or
furnishCambodiawithher views on the matter. This Note equally received
no reply. But the Thai "troops" (the Court understandsthat they are in
fact a police force) remained. Again, therefore,it would seem that Thailand, while taking certain local action, was not prepared to deny the
French and Cambodian claim at the diplomaticlevel.
No furtherdiplomatic correspondencewas produced to the Court; but
eventually,in 1958, a conferencewas held at Bangkok between Thailand
and Cambodia,to discuss various territorialmattersin dispute betweenthe
Parties, includingthat of Preah Vihear. The representativeof Thailand
having declinedto discuss the legal aspects of the matter,the negotiations
broke down and Cambodia institutedthe presentproceedings.
The Courtwill now state the conclusionsit draws fromthe facts as above
set out.
Even if therewere any doubt as to Siam's acceptanceof the map in 1908,
and henceof the frontierindicatedthereon,the Court would consider,in the
light of the subsequentcourseof events,that Thailand is now precludedby
her conductfromassertingthat she did not accept it. She has, for fifty
years,enjoyed such benefitsas the Treaty of 1904 conferredon her, if only
the benefitof a stable frontier. France, and throughher Cambodia, relied
on Thailand's acceptance of the map. Since neitherside can plead error,
it is immaterialwhetheror not this reliance was based on a belief that the
map was correct. It is not now open to Thailand, while continuingto claim
and enjoy the benefitsof the settlement,to deny that she was ever a
consentingparty to it.
The Court howeverconsidersthat Thailand in 1908-1909 did accept the
Annex I map as representingthe outcomeof the work of delimitation,and
hence recognizedthe line on that map as being the frontierline, the effect
of which is to situate Preah Vihear in Cambodian territory. The Court
considersfurtherthat,looked at as a whole,Thailand's subsequentconduct
confirmsand bears out her original acceptance, and that Thailand's acts
on the ground do not sufficeto negative this. Both Parties, by their conduct, recognizedthe line and therebyin effectagreed to regard it as being
the frontierline.
The Court must now considertwo furthermatters. Thailand contends
that since 1908, and at any rate up to her own 1934-1935 survey,she believed that the map line and watershedline coincided,and thereforethat
if she accepted the map line, she did so only in that belief. It is evident
that such a contentionwould be quite inconsistentwith Thailand's equally
stronglyadvanced contentionthat theseacts in the concreteexerciseof sovereigntyevidenced her belief that she had sovereigntyover the Temple
area: forif Thailand was trulyunder a misapprehensionabout the Annex I
line-if she reallybelievedit indicatedthe correctwatershedline- thenshe
must have believed that, on the basis of the map and her acceptance of it,
the Temple area lay rightfullyin Cambodia. If she had such a belief-and
such a belief is implicit in any plea that she had accepted the Annex I

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map only because she thoughtit was correct-then her acts on the ground
would have to be regardedas deliberateviolationsof the sovereigntywhich
(on the basis of the assumptionsabove stated) she must be presumed to
have thoughtCambodia to possess. The conclusionis that Thailand cannot
allege that she was under any misapprehensionin accepting the Annex I
line, forthis is whollyinconsistentwiththe reason she gives for her acts on
the ground,namelythat she believed herselfto possess sovereigntyin this
area.
It may be added that even if Thailand's plea of misapprehensioncould,
in principle,be accepted,it should have been advanced shortlyafter Thailand's own survey of the disputed region was carried out in 1934-1935.
Since then Thailand could not have been under any misapprehension.
There is finallyone furtheraspect of the case with whichthe Court feels
it necessaryto deal. The Court considersthat the acceptance of the Annex
I map by the Parties caused the map to enterthe treatysettlementand to
becomean integralpart of it. It cannot be said that this process involved
a departurefrom,and even a violationof, the termsof the Treaty of 1904,
whereverthe map line divergedfromthe line of the watershed,for,as the
Court sees the matter,the map (whetherin all respectsaccurate by reference to the true watershedline or not) was accepted by the Parties in 1908
and thereafteras constitutingthe result of the interpretationgiven by the
two Governmentsto the delimitationwhich the Treaty itselfrequired. In
otherwords,the Parties at that timeadopted an interpretationof the treaty
settlementwhich caused the map line, in so far as it may have departed
fromthe line of the watershed,to prevail over the relevant clause of the
treaty. Even if, however,the Court were called upon to deal with the
it considersthat
matternow as one solelyof ordinarytreatyinterpretation,
to be givenwould be the same,forthe followingreasons.
the interpretation
In general,when two countriesestablisha frontierbetweenthem,one of
the primaryobjects is to achieve stabilityand finality. This is impossible
if the line so establishedcan, at any moment,and on the basis of a continuously available process, be called in question, and its rectification
claimed,wheneverany inaccuracy by referenceto a clause in the parent
treatyis discovered. Such a processcould continueindefinitely,
and finality
would never be reached so long as possible errorsstill remainedto be discovered. Such a frontier,so far frombeing stable, would be completely
precarious. It must be asked why the Parties in this case provided for a
delimitation,instead of relying on the Treaty clause indicating that the
frontierline in this region would be the watershed. There are boundary
treatieswhichdo no morethan referto a watershedline, or to a crestline,
and whichmake no provisionforany delimitationin addition. The Parties
in the present case must have had a reason for taking this furtherstep.
This could only have been because theyregarded a watershedindicationas
insufficient
by itself to achieve certaintyand finality. It is precisely to
achieve this that delimitationsand map lines are resortedto.
Various factorssupport the view that the primaryobject of the Parties
in the frontiersettlementsof 1904-1908 was to achieve certaintyand fi-

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nality. From the evidence furnishedto the Court, and from the statementsof the Parties themselves,it is clear that the whole questionof Siam's
very long frontierswith French Indo-China had, in the period prior to
1904, been a cause of uncertainty,trouble and friction,engenderingwhat
was describedin one contemporarydocumentplaced beforethe Court as a
state of "growing tension" in the relations between Siam and France.
The Court thinksit legitimateto conclude that an important,not to say a
paramount object of the settlementsof the 1904-1908 period (which
broughtabout a comprehensiveregulationof all outstandingfrontierquestions betweenthe two countries),was to put an end to this state of tension
and to achieve frontierstabilityon a basis of certaintyand finality.
In the Franco-Siamese Boundary Treaty of 23 March 1907, the Parties
recitedin the preamblethat theywere desirous"of ensuringthe finalregulation of all questionsrelatingto the commonfrontiersof Indo-China and
Siam". A furthertokenof the same object is to be found in the desire,of
which the documentationcontains ample evidence,and which was evinced
by both Parties, for natural and visible frontiers. Even if, as the Court
stated earlier, this is not in itself a reason for holding that the frontier
must follow a natural and visible line, it does support the view that the
Parties wanted certaintyand finalityby means of natural and visible lines.
The same view is stronglysupportedby the Parties' attitude over frontiers in the 1925 and 1937 Treaties. By specificallyexcluding frontiers
fromthe process of revisionof previous treaties,which the 1925 and 1937
Treaties otherwiseeffected,the Parties bore witnessto the paramountimportancetheyattachedto finalityin this field. Their attitudein 1925 and
1937 can properlybe taken as evidencethat theyequally desired finalityin
the 1904-1908period.
The indication of the line of the watershed in Article 1 of the 1904
Treatywas itselfno morethan an obviousand convenientway of describing
a frontierline objectively,thoughin general terms. There is, however,no
reason to thinkthat the Parties attached any special importanceto the line
of the watershedas such, as comparedwith the overridingimportance,in
the interestsof finality,of adheringto the map line as eventuallydelimited
and as accepted by them. The Court,therefore,feels bound,as a matterof
to pronouncein favour of the line as mapped in the
treatyinterpretation,
disputedarea.
Given the groundson which the Court bases its decision,it becomesunnecessaryto considerwhether,at Preah Vihear, the line as mapped does in
fact correspondto the true watershedline in this vicinity,or did so correspondin 1904-1908,or, if not,how the watershedline in fact runs.
Referringfinallyto the Submissionspresented at the end of the oral
proceedings,the Court, for the reasons indicated at the beginningof the
presentJudgment,findsthat Cambodia's firstand second Submissions,callon the legal status of the Annex I map and on the
ing forpronouncements
line
in
the
frontier
disputed region,can be entertainedonly to the extent
that they give expressionto grounds,and not as claims to be dealt with in
the operativeprovisionsof the Judgment. It findson the otherhand that

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Thailand, after having stated her own claim concerningsovereigntyover

Preah Vihear, confinedherselfin her Submissionsat the end of the oral
proceedingsto argumentsand denials opposingthe contentionsof the other
Party, leaving it to the Court to word as it sees fitthe reasons on which its
Judgmentis based.
In the presenceof the claims submittedto the Court by Cambodia and
Thailand, respectively,concerningthe sovereigntyover Preah Vihear thus
in dispute betweenthesetwo States,the Court findsin favour of Cambodia
in accordancewith her third Submission. It also findsin favour of Cambodia as regards the fourthSubmission concerningthe withdrawalof the
detachmentsof armed forces.
As regards the fifthSubmissionof Cambodia concerningrestitution,the
Court considersthat the request made in it does not representany extension of Cambodia's original claim (in which case it would have been irreceivable at the stage at whichit was firstadvanced). Rather is it, like the
fourth Submission,implicit in, and consequential on, the claim of sovereigntyitself. On the otherhand, no concreteevidence has been placed
beforethe Court showingin any positiveway that objects of the kind mentioned in this Submissionhave in fact been removedby Thailand fromthe
Temple or Temple area since Thailand's occupationof it in 1954. It is true
that Thailand has not so much denied the allegation as contendedthat it is
irreceivable. In the circumstances,however,the question of restitutionis
one on which the Court can only give a findingof principle in favour of
Cambodia,withoutrelatingit to any particularobjects.
For these reasons,
THE COURT,

by nine votesto three,

findsthat the Temple of Preah Vihear is situated in territoryunder the
sovereigntyof Cambodia;
findsin consequence,
by nine votesto three,
that Thailand is under an obligation to withdrawany militaryor police
forces,or otherguards or keepers,stationedby her at the Temple, or in its
vicinityon Cambodian territory;
by seven votes to five,3
that Thailand is under an obligationto restoreto Cambodia any objects
of the kind specifiedin Cambodia's fifthSubmission4 which may, since
the date of the occupation of the Temple by Thailand in 1954, have been
removedfromthe Temple or the Temple area by the Thai authorities.
3 On this point Judges Tanaka and Morelli joined the dissentingJudges (Moreno
Quintana,WellingtonKoo, and Sir Percy Spender), on the groundthat the Court
shouldnot pass upon the Fifth Submissionby Cambodia,since it was not put forward
untilduringthe courseof thehearings.
4 The Fifth Submission,
put forwardby Cambodia on March 20, 1962, asked the
Court" to adjudge and declarethat the sculptures,stelae, fragmentsof monuments,
sandstonemodeland ancientpotterywhichhave been removedfromthe Templeby the
of the Xingdomof
Thai authoritiessince 1954 are to be returnedto the Government
of Thailand."
Cambodiaby the Government

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[Concurring in the result, Judges Alfaro and Fitzmaurice gave individual opinions. Judge Alfaro discussed at lengththe principleof "estoppel" or "preclusion" "that a State party to an internationallitigationis
bound by its previous acts or attitudewhen they are in contradictionwith
its claims in the litigation." Pointing out the differenceof this principle
fromthe Anglo-Americanlaw of estoppel,he declared that "Its purpose is
always the same: a State must not be permittedto benefitby its own inconsistencyto the prejudice of another State," and said: "Failure of a
State to assert its right when that right is openly challenged by another
State can onlymean abandonmentto [of] that right." Judge Fitzmaurice
wished to discuss certainpoints of the case morefully.
In his dissentingopinion Judge Moreno Quintana held the treaty text
more importantthan maps, that the interpretationof the treatycalled for
a watershedboundary,and that the watershedfollowedthe edge of the cliff
of the promontory
on whichthe Temple is situated,thus placing the Temple
in Thailand. Judge Wellington Koo's dissentingopinion concluded that
the "Annex map" did not have the characterof an internationalagreement; that Thailand's conductdid not show acquiescence in any line placing the Temple in Cambodia; that there was no ground to hold Thailand
accountableforacquiescenceor for the application of the idea of preclusion
or estoppel; urged that independentexpertsshould have found the actual
watershed,and concludedthat he could not reach a satisfactoryconclusion
as to the exact boundary withoutknowingthe answers to technical questions concerningthe watershed line in the disputed area. Sir Percy
Spender gave a lengthydissentingopinionin whichhe found no agreement
to deviate fromthe treatyline of the watershed,and that the Annex I map
did not in the vicinityof the Temple indicate the real agreementof the
parties, although neither France nor Thailand was aware of this discrepancy until long after the map was published. He did not find any
basis for holdingthat acquiescence had precluded Thailand fromasserting
the true treaty-boundary
line. He stated:
There is however,in my view,no foundationin internationallaw for
the propositionthat an act of recognitionby a State of or acquiescence
by a State in a situation of fact or law is a unilateral juridical act
which, operating of its own force, has the legal consequence of precluding a party giving or making it from thereafterchallengingthe
situationwhich is the subject of recognitionor acquiescence.
The principleof preclusionis a beneficientand powerfulinstrument
of substantiveinternationallaw. Based as it is upon the necessityfor
good faith betweenStates in theirrelationsone with another,it is not
to be hedgedin by artificialrules. It should not howeverbe permitted
to becomeso indefiniteas to acquire the somewhatformlesscontentof
a maxim. And since the principle,when it is applicable to any given
set of facts,substitutesrelative truth for the judicial search for the
truth,it should be applied with caution.
In my opinion the principle operates to preventa State contesting
beforethe Court a situationcontraryto a clear and unequivocal representationpreviouslymade by it to another State, either expresslyor
impliedly,on whichrepresentationthe otherState was, in the circumstances,entitledto rely and in fact did rely,and as a result that other
State has been prejudiced or the State making it has secured some
benefitor advantage for itself.
Unless the elementsso stated can, in any particular case, be shown
to exist,the principle has no application.

1962]

JUDICIAL

DECISIONS

1053

I greatlydoubt whetherany of the elementsof preclusionhave been

establishedby Cambodia. Even were it establishedthat Thailand's
conduct did amount to some clear and unequivocal representation,
and that France relied upon it and was entitled to do so, I do not
think there is any evidence that France-or Cambodia-sufferedany
prejudice.]
Resolution1731 (XVI) of GeneralAssemblyrequestingadvisoryopinion-objections to giving opinion based on proceedingsin General
Assembly-interpretationof meaning of "expenses of the Organization"-Article 17, paragraphs 1 and 2 of Charter-lack of justification for limitingterms"budget" and "expenses"-Article 17 in
context of Charter-respective functionsof Security Council and
GeneralAssembly-Article 11, paragraph 2, in relationto budgetary
powers of General Assembly-role of General Assemblyin maintenance of internationalpeace and security-agreementsunder Article 43-expenses incurredfor purposes of UnitedNations-obligations incurred by Secretary-Generalacting under authority of
Security Council or General Assembly-nature of operations of
UNEF and ONUC-financing of UNEF and ONUC based on Article
17, paragraph 2-implententationby Secretary-Generalof Security
Council resolutions-expendituresfor UNEF and ONUC and Article
17, paragraph 2, of Charter1
CERTAINEXPENSESOF THE UNITEDNATIONS(ARTICLE17, PARAGRAPH
2, OFTHE CHARTER).2 I.C.J. Reports,1962, p. 151.
InternationalCourt of Justice,3AdvisoryOpinion of July 20, 1962.
[Resolution 1731 (XVI), adopted December 20, 1961, by the General
Assembly,read:
The GeneralAssembly,
Recognizingits need for authoritativelegal guidance as to obligations of MemberStates under the Charterof the United Nations in the
matterof financingthe United Nations operationsin the Congo and in
the Middle East,
1. Decides to submit the followingquestion to the International
Court of Justicefor an advisoryopinion:
"Do the expendituresauthorizedin General Assemblyresolutions
1583 (XV) and 1590 (XV) of 20 December 1960, 1595(XV) of 3
April 1961, 1619(XV) of 21 April 1961 and 1633 (XVI) of 30
October1961 relatingto the United Nations operationsin the Congo
undertakenin pursuance of the Security Council resolutionsof 14
July,22 July and 9 August 1960, and 21 February and 24 November 1961, and General Assembly resolutions1474 (ES-IV) of 20
September1960 and 1599 (XV), 1600(XV), and 1601(XV) of 15
1 Captionby the Court.

matter,and digests of re2Full text of majorityopinion,exceptfor introductory

mainder,by Wm. W. Bishop,Jr.
8 Composedfor this case of PresidentWiniarski,
Vice PresidentAlfaro,and Judges
Basdevant,Badawi, MorenoQuintana,WellingtonKoo, Spiropoulos,Sir Percy Spender,
Sir GeraldFitzmaurice,
Koretsky,Tanaka, Bustamantey Rivero,Jessup,and Morelli.