PUBLIC INTERNATIONAL LAW

SUBMITTED TO: SUBMITTED BY:

DR. CHANDRESHWARI MINHAS SURUCHI SINGH
PROFESSOR OF LAW 1020202149
HPNLU, SHIMLA BALLB

7TH SEMESTER
 DECLARATION

I, Suruchi Singh, a 4th year student of Himachal Pradesh National Law University, Shimla
hereby declare that the assignment titled case analysis on the case the temple of preach Vihear
case (Thailand VS Cambodia) was done by me under the guidance of Dr. Chandreshwari
Minhas (professor of law) HPNLU, Shimla.

I also affirm that the content of this project has not been submitted or published in any form
to any institution for any degree or purpose.

Suruchi Singh
1020202149
Ballb
HPNLU, Shimla
 INDEX

1. INTRODUCTION
2. HISTORICAL BACKGROUND OF THE CASE
3. THAILAND’S CLAIM
4. COURT’S CLAIM ON THE REASONING MADE
5. ANALYSIS
6. CONCLUDING REMARKS
 CASE ANALYSIS

TEMPLE OF PREACH
VIHAR CASE (CAMBODIA
VS THAILAND) ICJ
REPORTS 1962
 INTRODUCTION

Comparatively speaking, international law is a relatively recent area of law, like a grove of
saplings. It comes from two sources: modern and conventional. The list isn't exhaustive,
though, because international law is dynamic and always evolving. Over time, numerous new
sources have surfaced. Final principles of law are generally used to "fill the gap" in cases where
there is neither a recognised customary principle of jurisprudence nor a provision in an
international treaty or statute for application in a global dispute.

Using the language of appropriate three-sided or bilateral treaties or legislation, or another

document that demonstrates the relationship and prior positions of the parties to a dispute, is
the most popular means of settling conflicts under the rule of law. Another method is to consider
custom, which refers to national practises in a specific area or space (also known as customary
international law) and the legal precepts that flow from them. But what happens if there isn't
any such governing body to promote the positive aspects of all parties involved in the conflict
settlement process? Any system, even the international one, will inevitably include these
loopholes since statutes, treaties (contracts), and custom-derived regulations cannot be crafted
to conceal every factor that gives rise to a disagreement.

This is said because, under international law, a judge cannot refuse to rule on a disagreement
just because there are no rules applicable to the particular case at hand. Article 38 of the
International Court of Justice law is the source of this remedy. A number of generic principles
may meet the following requirements:

The usefulness of common concepts across many legal systems can be used to derive the
principle.

• Principal of Estoppel.
• Pacta Sunt Servanda.
• Ex injuria ius non- oritur.

Spencer Bower claims that the old word "estop," which is a synonym for "stop," is where the
English term "estoppel" originates. This phrase meant that an action that suggested acceptance
of a certain situation would inhibit an actor from later contesting or disputing that situation.
Thus, the legal principle is independent of the veracity or untruth of the events in question
according to the word's etymology. Instead, it prevents a party from stating whether or not those
events were true in testimony or other communications. It is most frequently understood as an
international legal rule that prohibits a party from retracting earlier statements it made when
those statements caused others to rely on it or suffer harm.

The Preah Vihear Temple Case1, involving Thailand and Cambodia, saw the International Court
of Justice make the most extensive and in-depth ruling regarding the subject of law of estoppel.
The idea of the doctrine of estoppel as incorporated under the general principles of law, which
are employed as a source of international law, is the main emphasis of this paper's clear
discussion and analysis of the same case.

1
ICJ Rep 6, ICGJ 160 (ICJ 1962)
 HISTORICAL BACKGROUND OF TEMPLE

Preah Vihear, a magnificent example of 11th-century Khmer architecture, is made up of several

shrines devoted to the Hindu deity Shiva connected by a network of walkways and stairways
across an 800-meter axis. The temple at Preah Vihear is not as large as the more well-known
temple at Angkor, but it does have some of the same characteristics. For example, it represents
the Churning of the Sea of Milk and is a stylised version of Mount Meru, the home of the gods.

The temple is "exceptional for the quality of its architecture, which is adapted to the natural
environment and the religious function of the temple, as well as the exceptional quality of its
carved stone ornamentation," according to UNESCO, which named it a World Heritage site.

With a sweeping perspective of the plains below, the temple is perched atop a 1,700-foot cliff
in the Dangrek Mountains, straddling the boundary between Cambodia and Thailand. The
temple was not always believed to be on an interstate border, and the controversy around its
categorization began years ago and is still present now. Article 1 of the 1904 treaty caused
debate over the temple.

The agreements from 1904–1908 are the source of the conflict. Indo China (modern-day
Cambodia) and an Asian nation (modern-day Thailand) signed an agreement in 1904 stating
that a Mixed Commission was to draw the line. The boundary should be in line with the truth
watershed line, according to the treaty.

It was decided at a controlled meeting in December 1906 that the Commissioners would survey
the territory in the Dangrek Region. The President of the French Commissioners heard rumours
that the realm had been surveyed in January of the Gregorian calendar year 1907. No official
findings were released by the Commission since, soon after the line was established, they
turned their focus to another boundary treaty that was signed in March 1907.

Siamese officials urged French officials to create the maps after the study was finished since
they lacked the technical capacity to do so. The map was finished in 1907 by French officers;
several UN agencies had previously been under the Mixed Commission's jurisdiction. In 1908,
the Map was forwarded to the Siamese authorities. Temple Preah Vihear was marked on the
map as being in Cambodian territory. The Siamese officers showed no sign of acquiescence to
this.
Thailand conducted a survey in 1934–1935 and found that the road depicted on the map did
not correspond with the actual watershed line. In the years that followed, Thailand never
brought up this subject in discussions. They did not bring up the issue in the 1925, 1937, and
1947 agreements that were passed. Additionally, in 1930, upon the Thai official's visitation of
the Temple, a Cambodian official received him. Thailand never voiced any complaints about
this. Actually, Thailand didn't bring up its complaints until 1958. Everything proceeded
smoothly.
THAILAND’S CLAIM

• Since the Map was not created by the Mixed Commission, it was not legally
enforceable.
• The Map was invalid since it did not depict the actual watershed line.
• The Map was never adopted in Thailand.
• If it approved the Map, it was only because it believed it to be the accurate
representation of the watershed line.

COURTS’S REASONING ON THE CLAIMS MADE

• Since the Map was not created by the Mixed Commission, it was not legally
enforceable.

Thailand asserted that the Map was non-binding since the Mixed Commission had ceased
operations some months prior to its creation. However, the Map was given to the government
of Siam as a gift, with the boundaries in serious jeopardy resulting from the 1904 agreement.
The Court concluded that for a number of years following receipt of this, the Siamese
government made no complaints or objections. The border from that map was also used in
other maps that each party released in the years that followed. Therefore, the Court determined
that although though the Map was initially non-binding, Thailand and Cambodia's actions gave
it the appearance of a binding agreement. In fact, this demonstrated both parties' implicit
consent.

• The Map was invalid since it did not depict the actual watershed line.

None of the UN agencies voiced any complaints about the Map when it was finished and shown
to the Commission members who were Siamese. The same thing happened with the local
Siamese authorities: UN organisations had global knowledge. The Court believed that people
could not protest fifty years later, which is a very long time, if they didn't oppose or voice their
concerns after the Map was released.
Furthermore, the border shown on the map and the actual or true watershed line differ from
one another; this difference was documented as early as 1934–1935. Still, Thailand was forced
to keep printing maps that placed Temple Preah in Cambodian territory. Furthermore, Thailand
only brought up the issue in 1958 and did not bring it up in negotiations in 1937 or 1947.

• The Map was never adopted in Thailand.

Thailand asserted that it was never obliged to bring up the issue during the aforementioned
negotiations because it never accepted the Map. It asserted that this was proven by its body
language. The Court investigated the mere fact that a Thai politician had been met by a
Cambodian official during a global tour in 1930. The Court noted that Thailand had never
lodged a complaint about this.

Furthermore, the Court found that while Thailand had demonstrated some administrative body
acts, these were insufficient to overcome the ongoing administrative stance that declared the
Map to be legally obligatory.

• If it approved the Map, it was only because it believed it to be the accurate

representation of the watershed line.

The Court emphasised that before raising doubts about the Map's legitimacy, Thailand had
accepted it and benefited from having a stable border for fifty years. Furthermore, it was
discovered that the purpose of a border agreement is occasionally to establish a stable frontier;
in other words, adhering to the watershed was merely a means of achieving that objective.
Since the goal of the agreement was to establish a border, the Court concluded that it made no
difference whether the Map followed the watershed or not. The court further ruled that Thailand
has a duty to return any artefacts taken from the ruins since 1954 to Cambodia and to remove
any military or police forces stationed there.
 ANALYSIS

This can be considered the most thorough analysis of the International Court of Justice's
application of the law of estoppel in the Temple of Preah Vihear Case. Thailand and Cambodia
both asserted their claim to sovereignty over the area, which has significant historical and
religious value for both nations. However, as the case went before them, their actions gradually
revealed a hint of the court's ultimate ruling. The Cambodian definition of estoppel was adopted
by the court.

The components of estoppel were evident throughout the decision. Thailand attempted to argue
that the border line may be declared void after fifty years, but the court rejected this argument.
The International Court of Justice was extremely hesitant to declare the established boundaries
null and void in the current instance. The court discovered that, as a result of Thailand's actions,
it had accepted the map, which had led it to assume that the Temple was located within
Cambodian territory.
 CONCLUDING REMARKS

As things stand, it is indisputable that the international court of justice was presented with a
very laborious and delicate scenario including compelling claims from both Thailand and
Cambodia in the Temple of Preah-Vihear Case. The ICJ had to rely on its greatest abilities in
assessing the legal ramifications to ensure that it decides what fits within its jurisdiction and
the conformity of international law, just as every case is different and requires the most attentive
and meticulous focus. Though it was evident that the ICJ's 1962 ruling primarily focused on
the treaty law between Thailand and Cambodia, which supported the Annex 1 map, the court
also placed a great deal of weight on uti possidetis and effective control. The existence of a
boundary legal agreement and cartography undoubtedly provided as a strong dispositive for
the court's jurisprudence, even though the Parties relied on other arguments of a physical,
historical, religious, and archaeological character. The Court determined that these arguments
were inadmissible due to lack of legal compliance and validity, though this is not to entirely
imply that the ICJ has established a "tripartite hierarchy" for territorial disputes.

When considering the court's 2013 decision regarding the interpretation of the 1962 judgement,
it is important to keep in mind that, despite criticisms that the court cannot undermine its
credibility by altering the 1962 ruling, the International Court of Justice undoubtedly completed
its work with the utmost transparency and impartiality by applying international law to the
fullest extent possible and by taking into account the judges that it appointed on an ad hoc
basis. First of all, the International Court of Justice (ICJ) highlights the significance of the pacta
sunt servanda principle found in Article 26 of the Vietnam Civil Law Treaty (VCLT), which
states that "every treaty in force is binding upon the parties to it and must be performed by
them in good faith." In other words, good faith is a legal principle in and of itself and is a
fundamental component of the pacta sunt servanda principle, which both Thailand and
Cambodia must uphold.

Second, the court dispels arguments that it acted modestly by limiting its consideration to cases
resolved by its 1962 rulings by explicitly upholding Article 60 of its statute, which embodies
the principle of res judicata. This is because the court remembers that its jurisdiction under
these articles of the statute is unaffected by the existence or introduction of any other basis of
jurisdiction as between the parties to the original case. Furthermore, the International Court of
Justice (ICJ) makes it abundantly evident in Article 98, paragraph 2, of the Rules of Court that
a party seeking an interpretation must specify "the precise point or points in dispute as to the
meaning or scope of the judgement" in its request.

It is indisputable that the International Court of Justice (ICJ) is still a functional and effective
body that upholds international law. This is demonstrated by the fact that the ICJ considered a
request for an interpretation of a previously rendered decision, acknowledged the existence of
differing opinions regarding the extent of the dispute over territory between Thailand and
Cambodia, and proceeded methodically in reaching a decision.

The importance of treaties to the International Court of Justice (ICJ) is evident from its
procedural actions. They serve as a clear and aspirational legal thrust that facilitates compliance
when resolving territorial disputes and serves as an easily provable and admissible source of
law.

However, when we discuss the idea of sovereignty, which solidifies the dominant legal system
between States that are coordinating and juxtaposed, it is equally important to remember that
other territorial claims should not be disregarded, even though treaties, as the International
Court of Justice has demonstrated, do, unless they are flawed, represent a legitimate and more
proven factor to sovereign rights.

Although the court determined that Cambodia possesses exclusive sovereignty over the
disputed Temple, Cambodia persistently requested the International Court of Justice (ICJ) to
determine the precise boundaries with Thailand. The court declined to consider these requests,
believing that the matter should be resolved through bilateral agreement between the two
nations based on the Annex 1 map.

The precise delimitation of a particular area's boundaries is not governed by its appurtenance
when viewed as an entity, much as territorial rights might be impacted by boundary uncertainty.
For example, while "there is no rule that the land frontiers of a State must be fully delimited
and defined, and often in various places and for long periods they are not," it can be inferred
from the events of the Temple of Preah-Vihear Case that many conflicts would have been
avoided or at least lessened if clear boundary demarcation had been done. That is to say, the
only responsibility for delimitation procedures remained on a bilateral agreement that would
guarantee both Thailand's and Cambodia's freedom to exercise their sovereign rights without
hindrance and assist each nation in maintaining its territorial integrity, thus marking a
significant advancement in peacekeeping. Given that both sides have genuine entitlements, this
approach obviously represents an enormous undertaking in terms of the resources needed, but
it ideally leads to an excellent process when treating sovereign claims.