Abhisit and Democrats on Preah Vihear

By Bangkok Pundit Jun 25, 2008 12:05AM UTC

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Abhisit:

Abhisit said no Thai government had ever officially accepted the 1962 decision by the International Court of Justice (ICJ), and maintained that the country had the right to revive its claim to the 10th century Hindu temple if and when new evidence surfaces.

BP: He specifically mentions Article 60. Thailand cannot revive the issue. ICJ Statute:

Article 60

The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.

Article 61

1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment.

BP: The judgment was in 1962. That 10 years is up. I can’t see any dispute about the temple Preah Vihear either, as the Court ruled that “the temple of Preah Vihear is situated in territory under the sovereignty of Cambodia”, so Article 60 is a no go.
Abhisit continues:

The Democrat Party leader said that with the exception of the Samak government, no Thai government had ever regarded the ICJ ruling as the determination of the national border between the two sides.

BP: Umm. Red herring here by Abhisit. All Thai governments disagree on whether the ICJ ruling determined the national border 4.6km of disputed territory, but previous Thai government have agreed that the temple belongs to Cambodia. The national border is irrelevant. There is also no evidence that the Samark government is any different to previous governments.
Abhisit continues:

Abhisit showed Parliament a letter from the Thai Foreign Ministry to the Cambodian government, calling on Phnom Penh to reconsider its unilateral decision to apply to Unesco for World Heritage status.
The opposition leader also showed a joint communique revealing Samak’s “active support” for Cambodia’s bid for World Heritage status for the historic temple.

BP: Thailand rejected the 2006 application by Cambodia per the Post:

There were reports that Cambodia had attempted to register the temple as a World Heritage site without Thailand’s approval in 1991, but a Foreign Ministry source insisted that the first attempt was made in 2006. At that time, the boundary included the 4.6-square-kilometre disputed area which had not been demarcated.
Cambodia proposed it to the World Heritage Committee in 2006, but Thailand did not support the bid.
“Thailand categorically rejected it because the Cambodian side had used the old map [drawn in 1904 by France] which claimed the 4.6-square-kilometre area as part of its territory,” the ministry source said.
Finally, Cambodia drew a new map excluding the area which has not been demarcated and this has been accepted by the Thai government.

BP : Clear? The Surayud government also stated to UNESCO that it would provide “active support” for Cambodia’s application so I fail to see how “active support” is some revelation.
Abhisit continues:

He accused Abhisit of adding to the tension between the two countries and said Thai nationals in Cambodia are having sleepless nights. Samak said the Cambodian government has the right to propose the main temple – which the ICJ had ruled to be situated inside Cambodian territory – to Unesco for consideration as a World Heritage site.
Abhisit contended that no Unesco committee would approve such a request, as it would unnecessarily split up the ancient temple into two zones.
Last year, Thailand protested against Unesco Cambodia’s unilateral move to have the entire temple, which includes 4.6 square kilometres of overlapping claims, to become a World Heritage site.
The then government of Surayud Chulanont made the sticky topic of national borders a non-issue and suggested that Thailand and Cambodia file a joint application to Unesco.
Cambodia rejected the proposal and resubmitted its bid again this year.
Abhisit said it was a big mistake on the part of the Samak government to stray from the positions of previous governments that called for the two countries to put in a joint application.

BP: Earlier this year, the Surayud government supported a sole application by Cambodia. Last year (when Surayud was PM), UNESCO noted that the Thai government stated it would provide active support for Cambodia’s application. The Samak government is just continuing this.
He finishes with this parting shot:

“I never thought that a former lawyer of Thaksin Shinawatra would ever become a lawyer for Cambodia,” Abhisit said, in reference to Noppadon, who had represented Thaksin while the ousted premier lived in exile following the September 2006 coup.

BP: What PAD talking point will he borrow next? That the government is not protecting the Monarchy? Oh wait, it has already done this. So when will Abhisit start saying that the government wants to turn Thailand into Republic? He is complaining that Noppadon is making arguments that help Cambodia, but isn’t Abhisit doing the same when he says the Samak government is giving up [I don't follow exactly what he thinks Thailand is giving up] to Cambodia?
Matichon has Abhisit’s full statement in Thai. He acknowledges that the ICJ ruled that Preah Vihear or the temple is in territory under the sovereignity of Cambodia ( ศาลโลกได้ตัดสินว่า ปราสาทพระวิหาร ปราสาทพระวิหาร ภาษาอังกฤษใช้คำว่า Temple อยู่บนพื้นที่ภายใต้อธิปไตยของกัมพูชา ). As a refresher, the Court ruled that “the temple of Preah Vihear is situated in territory under the sovereignty of Cambodia”.
From there it is downhill, he states that the Court decision was in relation to the “Temple”, but the Cabinet Decision of 1962 was in in relation to the “Area” (ศาลตัดสินให้เฉพาะ Temple แต่มติครม.2505 นั้นเป็นเรื่องของ Area เพื่อจะปฏิบัติ ).
NOTE: Actually in the previous paragraph, he refers to Temple Area
BP: I can’t fathom what he is getting at here. The Court states the temple is in territory of Cambodia. By any reading the “Temple Area” is broader than just the “Temple” (there are the surrounding area. If the Thai Cabinet of 1962 accepted Cambodia over sovereignty of the Temple Area, how can Abhisit sovereignty of the Temple itself?
He then goes on a long semantic debate (in the hope of confusing Samak ?) on boundaries.
btw, look at this incoherence – I think by The Nation:

Samak dodged the accusation that he has effectively forfeited the country’s right to raise the Preah Vihear case with the ICJ. He argued that Thailand had lost the case in 1962 and urged the country to come to terms with the decision.

BP: Raise the Preah Vihear case with the ICJ? It was raised 45 years ago and Thailand lost. It cannot be revived with new evidence.

More Preah Vihear Nonsense at The Nation

By Bangkok Pundit Jul 27, 2008 12:04AM UTC

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UPDATE: Link fixed.
This new article really takes the cake for nonsense. Thankfully, Fonzi has fisked it. Two comments.
First:

Then, the Surayud government came to power following the coup. Its position was to insist that Thailand and Cambodia jointly apply for the listing of Preah Vihear as a World Heritage site.

BP: Why repeat this when it is not true? Last year, the Surayud government said it would support a sole application by Cambodia. Its original position might have been to insist on a joint application, but when push came to shove it agreed on Cambodia’s sole application.
Second, Thailand is now relying on the US map so the whole espionage thing seems like a red herring – the evil foreigners again. Was there anything secret or special about the Cambodian evidence? Perhaps, someone call look in the US archives as enough time would have passed to find out what the US government was doing.

The Nation on Preah Vihear

By Bangkok Pundit Jun 25, 2008 12:04AM UTC

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The Nation:

From the legal standpoint, Thailand has reserved the right not to agree with the Court’s ruling. But as a member of the United Nations, it has agreed to move its troops from Preah Vihear. The Court only ruled that Preah Vihear is under Cambodian sovereignty.
…
The Cambodian government has filed an application with Unesco for the Preah Vihear temple complex to be listed as a World Heritage site. The political controversy in Thailand is why the Samak government has rushed to endorse Cambodia’s sole application for the temple to become a Unesco-listed site.

BP: The Surayud government agreed in 2007 to support Cambodia’s 2008 bid.
The Nation continues:

This matter should have been handled with more diplomacy, through a joint application from both governments. Otherwise, this signals to the whole world that Thailand has accepted that the Preah Vihear Temple belongs to Cambodia when past Thai governments held reservations on the International Court of Justice’s ruling, which is not considered final from the Thai stance. Moreover, the Samak government has agreed to endorse Cambodia’s sole application for Preah Vihear to become a World Heritage site by setting aside the long-standing territorial dispute and proposed buffer zone on the north and west of the temple.

BP: Joint application how? The Thanom government and the Surayud government agreed that Cambodia has sovereignty over the Preah Vihear temple.

Cambodia has prepared the 47-page document for Unesco, detailing how the Thai government has been providing “active support” for the temple to be on the World Heritage List. This propaganda material looks, on the surface, very convincing because it chronicles step by step how the present Thai leaders – Samak Sundaravej, the prime minister; Noppadon Pattama, the foreign minister; and Somchai Wongsawat, the deputy prime minister and education minister – went to Phnom Penh to endorse Cambodia’s sole application for the temple to be listed.

BP: Propaganda material? That Cambodia document (PDF) also quotes from the UNESCO report in 2007 which states “Cambodia and Thailand agree that Cambodia will propose the site for formal inscription on the World Heritage List at the 32nd Session of the World Heritage Committee in 2008 with the active support of Thailand”. Funny that The Nation fails to note this. Does The Nation think that Thailand should go back on its word on providing active support for Cambodia’s bid? Given what happened in 2003, what is likely to happen to the Thai Embassy in Cambodia if Thailand opposes Cambodia’s application to UNESCO?
The Nation continues:

Again, we question why the Thai government is so keen to endorse Cambodia’s move on Preah Vihear in the absence of a joint application to Unesco and in the absence of an amicable agreement on the territorial dispute. Most importantly, the endorsement is sending a signal that Thailand will never try to reclaim Preah Vihear. The Samak government has committed a big diplomatic blunder, which is unforgivable.

BP: See above. What is unforgivable is The Nation distorting the facts.

Tulsie and Thanong on Preah Vihear

By Bangkok Pundit Jul 30, 2010 12:02PM UTC

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Actually, on the substance of Tulsie’s opinion piece in The Nation on why Abhisit is acting tough now BP thinks Tulsie is basically right so do not have a dispute with that, but then there is this:

Defending its decision to support Cambodia’s registration efforts, the Samak government pointed to two basic legal points. The first was the World Court ruling in 1962 declaring that the temple was on Cambodian territory. The second was Article 61 of the World Court ruling, which states: “No application for revision may be made after a lapse of 10 years from the date of the judgement.” Article 61 featured prominently in Cambodia’s application document to Unesco, with “LAPSE OF TEN YEARS” written in capital letters).
The Democrat camp led by Abhisit at the time pointed out Article 60 of the court’s ruling. This article allows warring parties to reserve doubts and observations concerning rulings and, unlike Article 61, this one does not spell out any time frame. Which article carries stronger weight is debatable, but the battle line was clearly drawn. The Democrats were saying that any Thai move that could weaken Thailand’s “silent protest” against the World Court ruling had to be avoided.

BP: Ok, He has Article 61 correct, but lets look at Article 60 (it is actually Article 60 of the ICJ Statute and not the court ruling) states:

Article 60
The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.

BP: What is in dispute about the scope of the decision? The key part of the Court decision (see this post for more):

“The Court however considers that Thailand in 1908-1909 did accept the Annex I map as representing the outcome of the work of delimitation, and hence recognized the line on that map as being the frontier line, the effect of which is to situate Preah Pihear in Cambodian territory“
“FOR THESE REASONS, THE COURT,
by nine votes to three,
Finds that the temple of Preah Vihear is situated in territory under the sovereignty of Cambodia

BP: So Thailand will go back to the ICJ and ask, did you really mean it when you said that the temple is in Cambodian territory? There is nothing vague about this. See this post as for a critique by someone else at The Nation on trying to use Article 60. Actually, Thailand doesn’t dispute this at all per this document from from the MFA:

Thailand accepts that the Temple belongs to Cambodia as it honors the ICJ’s decision on the matter.

BP: Now, there is argument, which the ICJ didn’t address, about whether the land boundary between Thailand and Cambodia is, is this what the Democrat party argument is? The ICJ didn’t address this in details (although it did mention about Thailand accepting the Annex 1 map) so is there really an argument for going back to the ICJ to determine the scope of the ICJ decision? Does Thailand really want to given that this would put more territory up for grabs?
Thanong in The Nation:

Thailand appears to be totally isolated on the issue. Most of the major powers are backing Cambodia on the management plan for the temple. This will allow interested parties a window of opportunity to take part in the development project for Preah Vihear, plus other business deals with Cambodia afterward.
Cambodia is trying every means to squeeze the territory from Thailand. The implication from this Unesco meeting is significant, for the claim over the land territory will have implications for maritime claims in the Gulf of Thailand, which are rich in oil and natural gas deposits.
…
If Cambodia insists on managing Preah Vihear, Thailand should respond in kind by closing the borders and stopping all trade with its neighbour. This would be the first warning. Thai soldiers on the border are on high alert. If the first warning goes unheeded, we should reserve the right, under our sovereignty, to drive out any nationals infringing upon our land.

BP: You see the Kasit/PAD line of thought in that first paragraph? Foreign countries are conspiring against Thailand it seems (Question? Because UNESCO delayed the decision until next year does it not logically follow that these countries are stalling for more oil and natural gas or that Thailand is giving them something in return?)
On the second paragraph, from Article 2 of the UNESCO Convention:

11. No act or activity undertaken on the basis of this Convention shall constitute grounds for claiming, contending or disputing any claim to national sovereignty or jurisdiction.

BP: This is the conflating of two issues (Preah Vihear and the maritime claims) by Thanong. Now, the issues are related in terms of Cambodian-Thai relations, but a ruling by UNESCO does not then legally mean anything in relation to the maritime claims.
On the third paragraph, will Abhisit comply?

Tulsie on Preah Vihear

By Bangkok Pundit Jun 25, 2008 12:03AM UTC

Tulsie:

What exactly was the World Court’s ruling and Thailand’s legal reaction?
Basically, the court, in June, 1962, ruled that the temple belongs to Cambodia, leaving unsolved questions over disputed surrounding areas. The Thai government at that time accepted the ruling with clenched jaws and reserved its right to renew its fight for sovereignty if future legal opportunities arise.
What were the court’s key reasons?
The ruling was based on a map drawn primarily by French colonial officers in the late 1900s and decades of Thailand’s non-objection to the map that put the temple on Cambodian soil. The map was an integral part of a treaty whose benefits for Thailand, Bangkok had never complained about.
Does the Samak administration’s decision to support Cambodia’s push for registration of the temple as a World Heritage site compromise Thailand’s sovereignty?
The decision, while obviously being overly politicised, was rash and uncalled for. It can be argued that the Joint Communique signed by Noppadon and the Cambodians to support the World Heritage nomination undermines decades of Thailand’s “silent” protests against Phnom Penh’s victory, and whatever right Bangkok may still hold to re-file the case.
Does Thailand still have that right?
The Samak government is holding on for dear life on Article 61 of the World Court regulation which states that “No application for revision may be made after the lapse of ten years from the date of the judgement”. (In Cambodia’s application document to Unesco, this article is highlighted, with “LAPSE OF TEN YEARS” in capital letters.)
In his scathing attacks on the government in Parliament yesterday, Democrat leader Abhisit Vejjajiva pointed out Article 60 of the court’s regulation. This article allows warring parties to reserve doubts and observations concerning rulings and it does not spell out any timeframe.
Which article carries stronger weight is open for debate, but Abhisit was right in saying that Article 61 should be cited by Cambodian lawyers, not Noppadon.

BP: Right to re-file? The ICJ decision was final and there is no legal dispute in relation to Preah Vihear. The Surayud Government informed UNESCO that “Cambodia and Thailand agree that Cambodia will propose the site for formal inscription on the World Heritage List at the 32nd Session of the World Heritage Committee in 2008 with the active support of Thailand.” Does Tulsie think this was “rash and uncalled for”?
ICJ Statute:

Article 60

The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.

Article 61

1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment.

BP: Is there any dispute about “THE COURT, by nine votes to three, Finds that the temple of Preah Vihear is situated in territory under the sovereignty of Cambodia”. In 1962, the Thai Foreign Minister Thanat Khoman sent a Note to formally inform the United Nations “of Thailand’s acceptance of Cambodia’s title over the Temple building proper”. I don’t see any dispute. However, on the off-chance there is, how exactly does it affect Thailand’s ability to use Article 60 when the UNESCO Convention states “The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute.”
It continues:

Is “joint nomination, made on more equal grounds” better and possible as claimed by the Democrats?
Some experts say that joint nomination is the best way, and should be a role model for this kind of dispute in Thai-Cambodian relations. Unfortunately, Noppadon and the government as a whole failed to explore this possibility.
Whereas Thailand being able or unable to “reserve” its rights regarding Preah Vihear is somewhat abstract and has much to do with “what ifs?”, Noppadon can be squarely criticised for not going for this best option for Thailand.

BP: Wrong! Noppadon explained to NationRadio yesterday that the Foreign Ministry proposed this in 2006, but Cambodia rejected this as the ICJ judgment gave Cambodia sovereignty – WMA audio here. The Surayud government accepted this – also see here.
Also, The Nation even states in another article today that Cambodia rejected a joint application, so why does Tuslie say there was a failure to explore this option