The Cambodia-Thailand tension on the Preah Vihear Temple has escalated. Cambodia has brought the issue to ASEAN and the UN Security Council while Thailand continues to insist that the issue be resolved bilaterally.

This issue, however, has been politicized and used for political advantage by various parties. It has also been used to stir up nationalist sentiment in both countries.

But amid all these talks, where are the facts? What is the truth? What is the basis of the criticisms on the Thai government’s agreement to Cambodia’s proposal to register the temple as a World Heritage Site? Can Thailand oppose the move, and on what ground should we do it? Does Thailand really lose her territory because of this registration? What has Thailand got to lose because of this registration?

These questions have been discussed a lot but they are often mixed with nationalist sentiment and personal bias (against/pro the government). It is therefore my intention in this blog to consider these questions by looking purely at facts. In the end, I have a question that I hope some of you could help provide concrete answers.

To begin with, I have to say I respect and agree with the Constitutional Court’s ruling that the agreement signed by Noppadon should have first gone through the Parliament. It should not have been kept in the dark from the public. I also feel that the timing of the signing of the agreement – after Thaksin’s presence in Cambodia and after the removal of the Head of MFA’s Department of Treaty and Law – makes the agreement very sketchy and draws suspicion.

I have to say this first because I’m not writing this blog to protect the Samak government. The purpose is to look at all the relevant facts and see whether there is any logical and sensible reason why Thais should be worried about the temple’s recent registration as a World Heritage. Let me also say here that I do not have clear answers for all of these questions.

1. Do the temple, and the land it stands on, belong to Cambodia?

The short answer to this question is yes, the temple is Cambodia’s, but the land ownership is unclear, although it seems like Cambodia does. Cambodia owns the temple because of the 1962 International Court of Justice’s ruling. Here are some quotes from the court’s ruling (full summary: http://www.icj-cij.org/docket/files/45/12821.pdf).

“…the Court, by nine votes to three, found that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia…”

The most important thing to take from the ruling is that the ICJ’s ruling was based on the “natural inference” that Thailand had practically accepted the so-called Annex I map, drawn by the French in 1907, in which the temple was situated within Cambodia’s territory.

“The Siamese Government and later the Thai Government had raised no query about the Annex 1 map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1995 a survey had established a divergence between the map line and the true line of the watershed, and other maps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia.”

“Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so.”

“The natural inference was that she [Thailand] had accepted the frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the watershed line.”

“From these facts, the Court concluded that Thailand had accepted the Annex I map… The Court therefore felt bound to pronounce in favour of the frontier indicated on the Annex I map in the disputed area…”

“For these reasons, the Court upheld the submissions of Cambodia concerning sovereignty over Preah Vihear.”

The 1962 ruling made it clear that the temple was situated in the territory of Cambodia because Thailand had failed to raise any concerns over the Annex 1 map and therefore could be seen to have accepted the map.

And since Thailand recognized the jurisdiction of the ICJ, she had to accept this ruling as binding.

2. Could Thailand have appealled to the ruling?

According to the ICJ:

“Judgments are final and without appeal. If either of the parties challenges their scope or meaning, it has the option to request an interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment.” (Read more about the ICJ at http://www.icj-cij.org/information/index.php?p1=7&p2=2)

Thailand had 10 years after 1962 to “request an interpretation” of the ruling, but she could not appeal the ruling. Revision of the ruling requires new substantial evidence, of which there has been none. So, for all legal and practical purposes, the temple belongs to Cambodia.

Now, here is something I am not sure on. Although the ICJ made its decision based on Thailand’s apparent acceptance of the Annex I map, does this ruling imply that the territory over which the temple is situated on legally belong to Cambodia? The ICJ’s ruling was specifically on the the ownership of the temple, not on the territory, but it certainly was based on the court’s view that the territory belongs to Cambodia because of Thailand’s apparent acceptance of the Annex I map.

So, by international law, does this ruling lead to the conclusion that the land on which the temple is situated belongs to Cambodia? Anyone who knows international law, please shed some light on this please?

Common sense would tell me that if a court rules that I own a particular building (which my neighbor claimed ownership too) and the basis of that ruling is that the land on which the building is situated is under my territory because my neighbor never says otherwise, then I would also assume that the land itself belongs to me. But legal issues are not always that straight-forward…

After the ruling, the Thai Cabinet “sliced” the piece of land in which the temple is situated on out of our map. The surrounding area of the temple, however, has still been claimed by Thailand. But this surrounding land also falls under Cambodia’s territory in the Annex I map. Thus, we have the so-called disputed land or overlapping land around the temple in which both countries claim.

3. Should Thais be concerned with the registration of the temple as a World Heritage by Cambodia?

Cambodia’s initial proposal to register the temple for UNESCO World Heritage included, based on the Annex I map, both the temple and the disputed land surrounding it. Thailand opposed this move, saying that it intruded into the disputed land which Thailand claims its sovereignty, and told Cambodia that it should register only the temple as World Heritage.

Cambodia then came up with a new proposal that requests registration of the temple plus just a few meters immediately surrounding it as a world heritage site. Noppadon sent the new map attached to this proposal to the military map division and asked if this intruded into the territory of Thailand. The military map division sent a team to survey the area and concluded that it did not. So, Noppadon went on to sign the agreement.

I think the key here is to go back to my doubt mentioned above:

Under international law and given that the temple legally belongs to Cambodia, does the land on which the temple is situated on legally belong to Cambodia too? The lack of clear answer to this question has led to confusion among Thais and has contributed to the tension.

If it does, then we should be very concerned because we might be losing our territory. If it does not, then I don’t see why we should be worried about Cambodia’s move. If the temple and the land are theirs, then they need not our consent to do whatever with the temple and the land.

There are other aspects of the Preah Vihear issue that are interesting and need attention – the nationalist sentiment, the use of the issue for political advantage, the resolution of the current tension between the two countries, and the disputed land surrounding the temple.

But I will just stop here with the above fundamental question.

(If the answer has been provided before in other blogs or sites, please direct me to them.)