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The Ghosts of the Temple of Preah Vihear/Phra Viharn in the 2013 Judgment

Published online by Cambridge University Press:  22 August 2014

Victor KATTAN
Victor KATTAN*
Affiliation:
National University of Singapore, Singaporevkattan@nus.edu.sg
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Abstract

This paper revisits the ICJ's original 1962 Decision in the case of the Temple of Preah Vihear, examining its legacy in the light of the 2013 Decision. The 2013 Decision, when read in isolation from the 1962 Judgment, does not provide any indication that the original Judgment was controversial. In contrast to the unanimous Decision of the Court in 2013, in 1962 three of the judges appended Dissenting Opinions. They dissented because they could not agree with the majority that the Temple was located in Cambodia. The 1962 Judgment was controversial because it relied on an inaccurate sketch map and deduced Thai acquiescence from a single photograph of a brief meeting between a dead Thai prince and a dead French official. The unanimous decision of the 2013 Court therefore appears to be to a conscious decision by the Court to reinforce a Judgment that was, in retrospect, evidentially weak.

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Type
SYMPOSIUM: THE TEMPLE OF PREAH VIHEAR
Information
Asian Journal of International Law , Volume 5 , Issue 1 , January 2015, pp. 16 - 25
Copyright
Copyright © Asian Journal of International Law 2014 

To Cambodians, the ancient Brahmanic Temple perched atop a spur of the Dangrek mountain range is known in the Khmer language as Preah Vihear, and to Thais in the Thai language as Phra Viharn.Footnote 1 The Temple ruins are located close to a contentious area between Thailand and Cambodia that became an issue during decolonization, when both Thailand and Cambodia claimed sovereignty over the Temple. The dispute over the sovereignty of the Temple and the area in its vicinity has persisted to the present day despite a controversial ruling by the International Court of Justice (ICJ) awarding the Temple to Cambodia in 1962.Footnote 2

On 11 November 2013, the ICJ delivered its Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear.Footnote 3 The Court unanimously declared, “by way of interpretation, that the Judgment of 15 June 1962 decided that Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear … and that, in consequence, Thailand was under an obligation to withdraw from that territory the Thai military or police forces, or other guards or keepers, that were stationed there”.Footnote 4 Despite the 1962 Decision being described by one scholar as “wrong both in fact and law”,Footnote 5 the ICJ explained through narrowly construing Cambodia's request for interpretation that it could not question that Decision.Footnote 6 Whilst, strictly speaking, the Court cannot question matters that had been settled with binding force in 1962, such as the location of the Temple, this leaves unresolved the problems associated with the original Judgment—including the rather important point that the Court may have erred in awarding the Temple to Cambodia. As explained below, the 1962 Judgment was decided on the basis of an inaccurate sketch map produced to only one side of the dispute, and a single photograph. These were very weak evidential grounds on which to reach a decision on a matter of such importance as allocating territorial sovereignty in a dispute with religious and cultural implications that has led to armed conflict. With hindsight, the categorical conclusions reached by the 1962 Court appear strikingly similar in tone to the Decision reached by the Court in the second phase of controversial South West Africa cases.Footnote 7

The seemingly uncontroversial nature of the Court's 2013 Judgment was reflected in the unanimous decision of the Court.Footnote 8 Only one judge felt compelled to write a separate Opinion.Footnote 9 And only five judges expanded on the Court's Judgment in the form of two individual declarations (one by Judge ad hoc Cot, the other by Judge Guillaume), and a joint declaration (by Judges Owada, Bennouna, and Gaja).Footnote 10 The 2013 Judgment, when read in isolation from the 1962 Judgment, does not provide any indication that the original Judgment was controversial. In contrast to the unanimous Decision of the Court in 2013, in 1962 three of the judges (Koo, Quintana, and Spender) appended Dissenting Opinions.Footnote 11 They dissented because they could not agree with the majority that the Temple was located in Cambodia.

I. ORIGINS OF THE DISPUTE

One of the central difficulties that the 1962 Court faced was that the Temple ruins are located in inhospitable, mountainous, and isolated terrain. Due to the isolated nature of that terrain neither Siam nor French colonial officials acting on behalf of Indo-China had shown much interest in the Temple until decolonization approached in the 1950s. By looking for traditional methods of displaying territorial sovereignty as used by Western states, the Court struggled to find a way in which it could decide where sovereignty lay when there were, in its view, few assertions of sovereignty by either Thailand or Cambodia that it was prepared to recognize in the vicinity of the Temple. The Court's problems were further compounded because Cambodia's archives had been lost, and no one who was responsible for producing the Annex 1 map, drawn up for a Franco-Siamese boundary delimitation settlement in 1904, was alive:

The World Court of 1962 may appear to us today as a haunted Hague, encircled by the ghosts of the Cold War. But already at that time, other ghosts were conjured up during the case of Preah Vihear. Acts of delimitation commissioners of 1905–1908 and their dead presidents were scrutinized for their effect on the Thai-Cambodian border, and the meeting of a dead prince and a dead archaeologist became fraught with consequence.Footnote 12

The only fact that had changed in the fifty-one years between the first and second Judgments was that Cambodia had, in 2007−08, requested that UNESCO inscribe the site of the Temple on the World Heritage List.Footnote 13 This led to the present dispute with Thailand, since Cambodia sought to inscribe a portion of territory adjacent to the Temple, which Thailand claimed, as part of a buffer zone to complete the inscription with UNESCO. The maps that Cambodia and Thailand submitted to UNESCO overlapped, with Cambodia claiming not only the entire promontory of Preah Vihear, but also the hill of Phnom Trap, which Thailand claimed.Footnote 14 In its written observations, Thailand also objected to Cambodia's use of the Annex 1 map, which Cambodia claimed before the Court “as representing the frontier between the two states”.Footnote 15

II. THE 2013 JUDGMENT

The Court, after explaining that it was only going to clarify the meaning and scope of the operative clause of the 1962 Judgment (hereafter the dispositif), and not any related arguments concerning the Annex 1 map, limited its Judgment to “an area of land hardly a kilometre in breadth”.Footnote 16 The Court focused on the narrow question of ascertaining the meaning of the term “territory” in the first paragraph of the dispositif, which had not been precisely defined by the 1962 Court, and the meaning of the phrase “vicinity” in the second paragraph of the dispositif, and which was now in dispute. In other words, this was not a dispute about the sovereignty of the Temple but about a small area that was adjacent to the Temple, and from which Thailand would become obliged to withdraw its armed forces if the Court were to rule that the area belonged to Cambodia.

The Court clarified that the term “territory”, as it was used in the first paragraph of the dispositif, meant “the Temple was situated in territory under the sovereignty of Cambodia”.Footnote 17 With regard to the meaning of “vicinity” in the second paragraph of the dispositif, the Court explained that it had “to be construed as extending at least to the area where the police detachment was stationed at the time of the original proceedings”.Footnote 18 This meant the term “vicinity” was restricted to “the promontory of Preah Vihear”.Footnote 19 In paragraph 98 of its Judgment the Court set out the limits of the promontory, and explained that “the promontory of Preah Vihear ends at the foot of the hill of Phnom Trap, that is to say: where the ground begins to rise from the valley”. Accordingly, the Court concluded that the area, from which Thailand had been required to withdraw its armed forces in 1962, included the whole territory of the promontory.Footnote 20

III. THE REFERENCE TO THE 1962 JUDGMENT

Only in paragraph 99, does the Court address the 1962 Judgment, as if it were an afterthought, by explaining that it was not going to address Thailand's argument about the Annex I map, which the 1962 Court had relied on to allocate the Temple to Cambodia:

The Court notes Thailand's argument about the difficulty of transposing the Annex I map and thus of ascertaining the precise location on the ground of the Annex I map line in the area described in the preceding paragraph. The 1962 Judgment did not, however, address that question and the Court cannot now, in the exercise of its jurisdiction under Article 60 to interpret the 1962 Judgment, deal with a matter which was not addressed by that Judgment.

The Court was being a little disingenuous in suggesting that it could not address the Annex 1 map, especially when this had been used by the 1962 Court to decide that sovereignty over the Temple belonged to Cambodia.Footnote 21 Whilst the sovereignty of the Temple was not in dispute in Cambodia's request for interpretation, the Annex I map was explicitly raised by Cambodia in its request for interpreting the 1962 Judgment when it claimed that the Annex 1 map represented its frontier with Thailand.Footnote 22 In its written observations of 21 November 2011, Thailand referenced Sir Percy Spender's Dissenting Opinion in relation to the accuracy of the map.Footnote 23 In refusing to address the Annex 1 map, the Court may have been persuaded by Thailand's argument that the map:

is riddled with ambiguities and errors, is the product of a mapping exercise carried out without benefit of modern technology and deficient even under the more limited standards of its day. Far from “removing uncertainty from their legal relations”, which is one of the “essentials of the judicial function”, to impose the Annex I map line over the Parties’ agreed process of modern survey and demarcation would introduce new and in practice intractable questions.Footnote 24

The Court's refusal to address Thailand's arguments about the Annex 1 map, but at the same time, to avoid apportioning sovereignty in the area of the Temple on the basis of that map, as Cambodia desired, may have been based on a desire to maintain the appearance of impartiality in the sense that no one got what they wanted. But the refusal to address the Annex 1 map may have also been due to legitimate fears that any use of that map would entail the Court having to question aspects of the 1962 Judgment, which was decided on the basis of the Annex 1 map. This was a risk which this Court did not want to take. Thus, rather than relying on the Annex 1 map to allocate sovereignty in the area of the Temple, the Court opted to avoid addressing the map altogether. The irony is that had the 1962 Court ignored the Annex 1 map, as the 2013 Court chose to ignore it, and relied instead on the text of the 1904 treaty that followed the watershed, then the 1962 Court could not but conclude that the Temple of Preah Vihear is, in fact, not in Cambodia but in Thailand.Footnote 25

IV. THE GHOSTS OF PREAH VIHEAR HAVE NOT BEEN EXORCIZED

Of course there was always more to these cases than just a map.Footnote 26 It is what the map represents and the evidential weight that the majority on the 1962 Court were prepared to ascribe that map that provides insight into the mentality of the Court as it was then constituted. The 1962 Judgment was controversial not only because it took at face value an unofficial, unsigned, and inaccurate sketch map that had been produced by French colonial officials to only one side of the dispute, but also because it deduced, from a single photograph, Thai acquiescence from a brief meeting between a Thai prince and a minor French official that occurred in 1930 (and who were both deceased when the issue came to Court in the late 1950s). The controversial nature of the Annex 1 map and the meeting was raised in two important Dissenting Opinions by Judges Wellington Koo and Sir Percy Spender.

A. The Annex 1 Map

Judge Wellington Koo was unimpressed with the argument advanced by the Court that the Siamese authorities should have noticed the discrepancy in the Annex 1 map and have lodged a formal protest with France as soon as they were aware of it. As he observed, the map was one of a set of eleven, drawn on the scale of 1:200,000, with the ground between the alleged frontier line and the Temple represented by a width of only 2.5 millimetres.Footnote 27 Thus, Judge Koo argued, “far from constituting a legal basis for the presumption of Siam's acceptance of the Annex 1 map”, the decision of the majority of the 1962 Court that Siam's silence amounted to acquiescence to French sovereignty over the Temple was “no more than a conjecture”.Footnote 28 For if Siam did not know that the Annex 1 map had awarded the Temple to Cambodia then how can it have acquiesced? Moreover, how could it be expected to protest?

Judge Sir Percy Spender criticized the suggestion that Siam should have been aware of what was contained in the Annex 1 map as there was no evidence to suggest that Siam knew of the contents of any of the map sheets before they were delivered to its Minister in Paris. France did not consult Siam about the production of the map but presented it with a fait accompli. Thus, as Sir Percy explained, the French authorities went ahead with the printing, publication, and distribution of the maps without seeking the prior views of Siam.Footnote 29 In order to support a claim of estoppel in international law, a representation is essential whereupon reliance in good faith has been placed to the detriment of the relying state or to the advantage of the state making such representation.Footnote 30 But it was Siam, not Cambodia, “who placed reliance upon France's conduct to her detriment and to France's advantage”.Footnote 31

B. Prince Damrong's Visit

Judge Wellington Koo also objected to his colleagues’ preoccupations with “pomp and ceremony”, which he believed led them to ascribe undue significance to “a customary act of Oriental courtesy” that did not have the meaning and significance they inferred from it. Judge Koo was referring to the visit of Prince Damrong to the Temple in 1930, in the presence of the French resident of the neighbouring province of Kompong Thoma, who raised the French flag, which was captured in a photograph. Because the Prince did not protest, the 1962 Court inferred that he must have acquiesced to French (and therefore Cambodian) sovereignty:

The Prince could not possibly have failed to see the implications of a reception of this character. A clearer affirmation of title on the French Indo-Chinese side can scarcely be imagined. It demanded a reaction. Thailand did nothing.Footnote 32

But, as Judge Koo explained, it was unrealistic to expect any protest in such circumstances. It was a question of context. The dispatch of a thankyou letter and a photograph was merely an act of courtesy, not an acknowledgement of French sovereignty. Furthermore, the colonial conditions in Indo-China at the time meant that it was unrealistic to expect the Prince to lodge a protest with the French authorities. One could not expect Siam to protest in the period of colonial expansion, for otherwise France could have taken the Temple by force.Footnote 33

Sir Percy was even prepared to acknowledge this argument. In his Dissenting Opinion, Sir Percy quotes a statement made by the daughter of Prince Damrong:

it was generally known at the time that we had only to give the French an excuse to seize more territory by protesting. Things had been like that since they came into the River Chao Phya with their gunboats and their seizure of Chanthaburi.Footnote 34

After quoting this passage, Sir Percy wrote: “No matter how unjustified this view may have been I am satisfied that it was not a view conjured up for the purposes of this case.”Footnote 35 In other words, Sir Percy was prepared to accept that one reason why the Prince did not object to the French flag during his meeting with the French resident was that this would have given France an excuse to annex the Temple.

V. THE COLD WAR AND DECOLONIZATION

The 1962 Judgment has to be understood in the context of the Cold War and decolonization. The Americans were getting more involved in the Vietnam War, replacing France after its defeat at the battle of Dien Bien Phu.Footnote 36 US presence in the region was thought necessary to contain the spread of Communism.Footnote 37 Prince Sihanouk had come to power in a coup with French support.Footnote 38 Unlike Thailand, which was a front-line state and a secure US ally, Cambodia, which under Sihanouk claimed to be neutral, could play off the US vis-à-vis the People's Republic of China and the USSR when it came to seeking weapons and support.Footnote 39

The significant American interest in the outcome of the case was reflected in Thailand's and Cambodia's decisions to hire well-known US lawyers to represent them. Thailand initially hired Phillip Jessup, a former US diplomat and professor of international law at Columbia University, and Cambodia hired Dean Acheson, who had been US Secretary of State from 1949 to 1953. Jessup had to resign when he was elected a judge of the ICJ, and because he had been advising Thailand he could not participate as a judge in the case.Footnote 40 This had unfortunate consequences for Thailand, as it allowed Acheson to turn the tables on Thailand.Footnote 41

According to one critic, it was the use of clever Orientalist rhetoric by Acheson that persuaded a majority of the Court to support Cambodia's claim to the Temple by playing to the inherent prejudices of the European colonial minds that were still prevalent at the Court in the early 1960s.Footnote 42 How much trust could the Court place in the assertions of the local Thai authorities that they exercised control in the area of the Temple over the map-making skills of French colonial officials? The 1962 Court effectively answered this question by explaining early in its Judgment that it was unable to regard arguments of a physical, historical, religious, and archaeological character as being “legally decisive”.Footnote 43 This effectively meant that the Court was not going to recognize claims made by states that did not fit in with its understanding of traditional Western methods of displaying territorial sovereignty.

VI. A QUESTION OF PERCEPTION

The 1962 Court's curt dismissal of the arguments that Thailand had advanced to show effectivité in the area of the Temple as not being “legally decisive” reflected a rather “Eurocentric” view of international law, which also found expression in the Court's 1966 Decision in the second phase of the South West Africa cases.Footnote 44 (Thailand had sought to demonstrate effectivité by producing evidence to show that local Siamese authorities collected taxes in the area, granted permits to cut timber, sent forestry officers on inspections, built a road to the foot of Mount Preah Vihear, and sent guardians to the Temple.) Clearly, the evidence Thailand presented before the Court to show effectivité in the area of the Temple was not, in the view of the 1962 Court, “clothed in legal form”.Footnote 45 Thailand was effectively articulating arguments in a language that was alien to the Court.Footnote 46

In contrast, there could be “no doubt” that the French topographical officers who produced the Annex 1 map “acted in complete good faith, used all their skill, and fully believed that the watershed in the Preah Vihear region ran as indicated by the Annex 1 line”.Footnote 47 Nor was the 1962 Court prepared to recognize or give effect to displays of authority by local Thai officials or “sympathise with Siam's lack of topographical and cartographical expertise”.Footnote 48 With Thailand's evidence of effectivité dismissed by the Court, the majority could not but conclude that the Temple was in Cambodia, since the French topographical officers (who were long deceased) believed that the Temple was, at the time, part of the French Empire. And, of course, there could be no question of their “complete good faith”. But a willingness to believe that the Thai authorities had acted in good faith was absent.

VII. CONCLUSION

The Court's role in attempting to resolve one of Asia's many complicated territorial disputes, and one that has cultural and religious implications, is undoubtedly laudable. Yet on reading the 1962 Judgment, it seems that the 2013 court had been too unequivocal in reaching its Decision. This may have been due in part to a conscious decision by the Court to reinforce a Judgment that many on the bench considered evidentially weak. But since the 2013 Court decided that it was precluded by its own Statute from revisiting the controversies contained in the original Judgment, the factual and legal defects in that Judgment were not addressed. Perhaps it was for this reason that it was necessary for the 2013 Court to deliver a unanimous verdict, if only to reinforce its previous Judgment, no matter how flawed the original Judgment was. This Court was not going to risk reopening a “Pandora's box”.

Conceivably, the dispute over the Temple of Preah Vihear could have been readily resolved if, as Judge Moreno Quintana had urged in his Dissenting Opinion, the 1962 Court ignored the Annex 1 map altogether, and instead interpreted Article 1 of the 1904 treaty “according to its natural and ordinary meaning”.Footnote 49 After all, as Judge Fitzmaurice conceded in his separate Opinion, the Temple had originally been located in Siam as a result of an 1867 treaty that Siam concluded with France.Footnote 50 The effect of the 1962 Judgment was therefore to transfer Siamese territory and the Temple to Cambodia. Interpreting Article 1 of the 1904 treaty would have been preferable to the complicated and convoluted way in which the Court chose to determine territorial sovereignty by basing its reasoning on a photograph and an inaccurate sketch map that departed from the watershed as described in that treaty.

Footnotes

*

Postdoctoral Fellow, National University of Singapore. I would like to thank Simon Chesterman for his comments on an early draft of this paper.

1. See CUASAY, Peter, “Borders on the Fantastic: Mimesis, Violence, and Landscape at the Temple of Preah Vihear” (1998) 32 Modern Asian Studies 849. In order to maintain consistency with the language used by the ICJ, this paper uses the name “Preah Vihear” for the Temple hereafter.

2. See Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, [1962] I.C.J. Rep. 6. [Preah Vihear (Merits)].

3. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org〉 [Request for Interpretation (Temple of Preah Vihear)].

4. Ibid., at 36.

5. See CHAN, Phil C.W., “Acquiescence/Estoppel in International Boundaries: Temple of Preah Vihear Revisited” (2004) 3 Chinese Journal of International Law 421 at 434.

6. Supra note 3 at 25, para. 66.

7. South West Africa Cases, Second Phase, Judgment of 18 July 1966, [1966] I.C.J. Rep. 6 [South West Africa cases]. On the controversy of the South West Africa cases, see Victor KATTAN, “Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South West Africa Cases”, this volume.

8. Supra note 3.

9. See see Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Separate Opinion of Judge Cançado Trindade, Judgment of 11 November 2013, paras. 62−3, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17708.pdf〉.

10. See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Declaration of Judge ad hoc Guillaume, 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17711.pdf〉; Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Declaration of Judge ad hoc Cot, 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/ files /151/17713.pdf〉; and Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Joint Declaration of Judges Owada, Bennouna, and Gaja, 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17706.pdf〉.

11. See Opinion Dissidente de M. Moreno Quintana, supra note 2 at 67; Dissenting Opinion of Judge Wellington Koo, supra note 2 at 75; Dissenting Opinion of Sir Percy Spender, supra note 2 at 101.

12. Cuasay, , supra note 1 at 850.

13. Supra note 3 at 14, para. 25.

14. Ibid., at 14, para. 26.

15. See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Written observations of the Kingdom of Thailand, 21 November 2011, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17284.pdf〉 at 193−256. For Cambodia's arguments, see Request for Interpretation (Temple of Preah Vihear), supra note 3 at 8, para. 12(vii).

16. Supra note 3 at 29, para. 78, quoting Cambodia's counsel.

17. Ibid., at 29.

18. Ibid., at 32, para. 88.

19. Ibid., at 33, para. 97.

20. Ibid., at 34, para. 98.

21. See Preah Vihear (Merits), supra note 2 at 22−33.

22. See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Application Instituting Proceedings, 28 April 2011, online: ICJ 〈http://ww w.icj-cij.org/docket/files/151/16470.pdf〉, paras. 24, 42, 44, 45.

23. Supra note 15 at 260, para. 6.6. As Sir Percy observed: “The frontier line delineated in Annex 1 deviates considerably from the watershed.” This was due to “a mistake caused by an incorrect location of a river known as the O'Tasem. This mistake resulted in throwing the frontier line shown on Annex I completely out of alignment with the line of the watershed in the region of the Temple.” “The result”, Sir Percy continued, “was to leave the Temple wholly within the territory of Cambodia.” See the Dissenting Opinion of Sir Percy Spender, supra note 2 at 122.

24. Supra note 15 at 279, 6.31, citing the Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), [1963] I.C.J. Rep. 15.

25. See Dissenting Opinion of Judge Moreno Quintana, supra note 2 at 67, who reached this conclusion on the basis of such reasoning.

26. Although the accuracy of the Annex 1 map also became an issue in the 2013 Judgment—and was perhaps another reason for the Court to ignore it. As Thailand observed, the Annex 1 map that Cambodia was basing its case on was not the map that had been placed before the Court in 1962, but a revised version. See supra note 15 at 272, ftn 597.

27. See Dissenting Opinion of Judge Wellington Koo, supra note 2 at 84, para. 19.

28. Ibid., at 84, para. 19.

29. See Dissenting Opinion of Sir Percy Spender, supra note 2 at 126.

30. Whilst in the Preah Vihear (Merits) case, only Judges Wellington Koo and Sir Percy Spender thought that detrimental reliance was required for estoppels to operate, in the North Sea Continental Shelf cases, [1969] I.C.J. Rep. 3, the majority (including Judge Gerald Fitzmaurice) indicated that estoppel required detrimental reliance. Clearly, Fitzmaurice had changed his mind, since in Preah Vihear (Merits), he did not think that detrimental reliance was necessary for estoppels to operate. See HIGGINS, Rosalyn, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1995) at 36.

31. See Chan, , supra note 5 at 426.

32. Supra note 2 at 30−1.

33. See Dissenting Opinion of Judge Wellington Koo, supra note 2 at 90−1, para. 34.

34. See Dissenting Opinion of Sir Percy Spender, supra note 2 at 128.

35. Ibid., at 129.

36. As John Tully writes, between 1953, the year of Cambodia's independence, and 1963, “the United States had contributed almost US$404 million to the Cambodian state, more than double the quantity given by all other donors combined and amounting to a 15 per cent annual subsidy of the Cambodian treasury”. See TULLY, John, A Short History of Cambodia: From Empire to Survival (Crows Nest, NSW: Allen & Unwin, 2006) at 143.

37. In the late 1950s, Prince Sihanouk “claimed that 35 per cent of returning graduates from French universities were ‘infected’ with communist beliefs”; ibid., at 141.

38. Ibid., at 118−19.

39. See Cuasay, , supra note 1 at 878−879.

40. Ibid., at 864−5, quoting the 18 and 19 June 1962 editions of The Bangkok Post.

41. Sir Frank Soskice, the United Kingdom's former Attorney-General, became Thailand's leading counsel in Jessup's place, although it seems that in this particular case he was no match for the formidable Acheson.

42. See Cuasay, , supra note. 1 at 855−876.

43. See Preah Vihear (Merits), supra note 2 at 15.

44. The Court, in dismissing Ethiopia's and Liberia's claims that South Africa was breaching human rights in South West Africa through its apartheid policy, explained that humanitarian considerations were insufficient in themselves to generate legal rights and obligations. The 1966 Court explained that it could take account of moral principles “only in so far as these are given a sufficient expression in legal form”. See South West Africa cases, supra note 7 at 34, para. 49.

45. The 1966 Court had used the phrase “clothed in legal form” to dismiss the Applicant's arguments that the “sacred trust of civilization” in Article 22 of the League of Nations Covenant was devoid of legal content and merely expressed a moral or humanitarian ideal. See ibid., at 34, para. 51.

46. Burgis-Kasthala makes the argument that the ICJ favours colonial documents over other sources which may indicate governmental authority over territory, such as Islamic sources, in her analysis of ICJ Judgments on territorial disputes in the Arab world. See BURGIS, Michelle, Boundaries of Discourse in the International Court of Justice: Mapping Arguments in Arab Territorial Disputes (Leiden: Brill, 2009).

47. See Separate Opinion of Sir Gerald Fitzmaurice, supra note 2 at 52 and 58. Sir Gerald (at 60−1) seems to have been persuaded by the evidence of one of Thailand's witnesses that he saw no evidence of inhabitants, rice cultivations, or forestry during a visit he made to the Temple in 1961.

48. Ibid., at 58.

49. See Dissenting Opinion of Moreno Quintana, supra note 2 at 68.

50. See Separate Opinion of Sir Gerald Fitzmaurice, supra note 2 at 52.

* Postdoctoral Fellow, National University of Singapore. I would like to thank Simon Chesterman for his comments on an early draft of this paper.