75

DISSENTING OPINION OF JUDGE WELLINGTON KOO

To my great regret I am unable to concur in the Judgment of the
Court. Although I reserve my own final conclusion in the case for
reasons explained toward the end of this statement, I find that the
grounds upon which the Judgment is based cannot be sustained
in fact or in law.

1. The basic issue of the dispute, as it appears clear from the
final submissions of the Parties as well as from their respective
pleadings, both written and oral, is the question whether the
Temple of Preah Vihear is situated in territory under the sover-
eignty of Cambodia or under that of Thailand.

2. Cambodia relies on the map of the Dangrek sector (Annex I
to the Memorial) ; and contends that it ‘‘was drawn up and published
in the name and on behalf of the Mixed Delimitation Commission
set up by the Treaty of 13 February 1904, that it sets forth the
decisions taken by the said Commission and that, by reason of
that fact and also of the subsequent agreements and behaviour
of the Parties, it presents a treaty character”. She further claims
that “the frontier line between Cambodia and Thailand, in the
disputed region in the vicinity of the Temple of Preah Vihear, is
that which is marked on the map of the Commission of Delimitation
between Indo-China and Siam” and that ‘the Temple of Preah
Vihear is situated in territory under the sovereignty of the Kingdom
of Cambodia”.

3. Thailand denies any validity to the claims of Cambodia and
argues, principally, that “the map Annex I has not been proven to
be a document binding on the Parties whether by virtue of the
Treaty of 1904 or otherwise’; that ‘‘Thailand and Cambodia have
not in fact treated the frontier marked out on Annex I as the
frontier between Thailand and Cambodia in the Dangrek region”;
and that ‘for the above reasons, the frontier line marked on Annex I
ought not to be substituted for the existing boundary line in fact

observed and accepted by the two Parties in the Dangrek range”.

She further contends “that at all material times Thailand has
exercised full sovereignty in the area of the Temple to the exclu-
sion of Cambodia” and that “if, which is denied, Cambodia in
any sense carried out any administrative functions in the said
area, such acts were sporadic and inconclusive, and in no sense
such as to negative or qualify the full exercise of sovereignty in the
said area by Thailand’.

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76 JUDGM. I5 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

I

4. Does the Annex I map possess, as claimed by Cambodia,
a treaty character and therefore impose a binding obligation on
Thailand? To give a correct answer to this question, it is necessary
first of all to examine closely what evidence has been produced
before the Court by both Parties. A careful perusal of the relevant
documents, however, reveals nothing to show or even suggest
that any discussion of the boundary line marked on Annex I map
took place in the Mixed Commission of Delimitation or that any
decision was taken by it. Twenty-five Minutes of the said Commis-
sion have been filed with the Court and they contain no record of
any such discussion or decision. Yet it will be recalled that at the
very first meeting of the said Commission on 31 January 1905 held
at Svai Don Keo, a French and a Siamese secretary were respec-
tively appointed by the two Presidents to draw up minutes of the
meetings, and it was agreed by them that “the task the Commission
had to fulfil was therefore divided into three parts:

1. The reconnoitring of the territory.
2. Surveying the territory.
3. Discussion and definite fixing of the frontier.”

5. At the meeting of the Commission on 7 February 1905, when
a difference of opinion arose as to the best way of determining the
frontier line with reference to the sources of the Prek Kompong
Prak and the watershed between the Stung Pursat and the river
Mong, Commandant Bernard, the French President, reminded
General Mom Chatidej Udom, the Siamese President, of the pro-
cedure established at the first meeting, according to which:

“the Commission should first carry out a general reconnoitring,
gather information of various kinds which would make it possible
to fix on the spot the points through which the frontier passed, then

- mark that frontier on the map and finally, if necessary, discuss
whether it was correct and make any essential modifications. As
soon as agreement was reached, the frontier line would have been
finally determined by the members of the two Commissions signing
the map on which the frontier had been marked.”

As another example of the importance which the Mixed Commission
attached to the agreed procedure of delimitation, as stated above—
and there are many others in the Minutes of its meetings—I may
refer to the discussions between the two Chairmen at a meeting
of the said Commission on 18 January 1907 at Pak-Moun relating
to the Siamese proposal to take as frontier the central meridian
falling between the O Roun and the former bed of the Prek Kom-
pong Tiam, when Colonel Bernard replied:

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77 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

“The question could not be studied until the two Commissions
were in possession of the maps which were then in course of prepara-
tion and which the topographical officers were to take with them
to Bangkok.”

6. Since it has not been claimed that other meetings of the Mixed
Commission had been held, the Minutes of which had been lost, it
can be concluded that no other meeting had taken place and that
no decision concerning the frontier line of the Dangrek sector to the
east of Kel Pass and west of the Pnom Padang as marked on the
map Annex I, according to which the Temple of Preah Vihear is
situated within Cambodian territory, had ever been taken.

7. It appears equally clear from the agreed procedure of the
Mixed Commission for its work of delimitation that the French
officers who were charged with the making of the maps, including
the Annex I map, had no authority to give any final interpretation
about any part of the proposed boundary line including the line
marked on the said map, in regard to which no decision had been
taken by the Mixed Commission. Nor could it be maintained, in
the absence of any evidence of specific instructions from the said
Commission, that whatever power of adaptation which the Treaty
of 1904 may have conferred on this Commission as a body, also
appertained to the French topographic and geodetic officers whether
for the Dangrek sector or for any other part of the frontier to be
delimited.

8. The meeting of 18 January 1907 to which I have just referred
was in fact the last meeting! of the Mixed Commission which dealt
with any question connected with the work of delimiting the
frontier line stipulated in the Treaty of 1904. At this meeting the
only decision taken was one which, in regard to “the determination
of the frontier in the region of Pnom Pa Dang (Phu Pha Dang)”
fixed the thalweg of the Huei Don as the boundary from where
this stream meets the Mekong and stated: ‘“The frontier would
go up that thalweg as far as the source of the water course and would
then follow the crest of the Phu Pha Dang to the south-west.”
This decision was also alluded to in Colonel Bernard’s letter of
20 February 1907 to the French Minister in Siam:

“All along the Dang Rek and as far as the Mekong, the fixing
of the frontier could not have involved any difficulty. It was only
a question of determining at what point Pnom Padang adjoins
the Mekong. On this point there was no possible discussion for the
mountain joins the river at one point about seven kilometres below

aknam.”

1 There was another meeting of the Mixed Commission on 19 January 1907, but
it was held solely for the purpose of determining “‘the plots of land that are to be
conceded to the French Government at the mouth of the Semoun, in conformity
with Article 8 of the Treaty of 13 February 1904’’.

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78 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

Here in the passage quoted above, Colonel Bernard, besides report-
ing the determination by agreement of the said point, was obviously
expressing his own view as to the task of fixing the boundary all
along the Dangrek. For on 20 February 1907 the report of Captain
Oum, who had been assigned the work of surveying this sectot of
the Dangrek, had not yet been received, since we learn from Colonel
Bernard’s report of 6 March 1907 to the Governor-General of
Indo-China that “the topographical officers arrived here between
18 February and 4 March and the provisional maps of the frontier
region could not be completed until yesterday”. ‘“Here’”’ evidently
meant Bangkok and “‘yesterday’ 5 March 1907. It is, therefore,
clear that the Mixed Commission could not possibly have had a
discussion, not to say taken a decision, at its meeting of 18 January
1907 to fix the boundary line all along the Dangrek westward from
the Mekong to Kel Pass.

g. Another plenary meeting of the Mixed Commission. had,
indeed, been contemplated, as it was reported in the letter of
23 February 1907 of the French Minister in Bangkok to the French
Minister for Foreign Affairs:

“The maps indicating the frontier can be brought up to date in
a fairly short time and the plenary meeting of French and Siamese
Commissioners willl probably be held before 15 March.”

Colonel Bernard himself considered that “the Delimitation Com-
mission could not be dissolved without having closed the work
by a final agreement” and used this point as one of his reasons for
urging Mr. Strobel, General Adviser of the Siamese Government,
whom he had already seen several times since his arrival in Bangkok
on I March 1907, to push a French proposal, based upon his ‘more
ambitious plan” of acquiring for French Indo-China the three
provinces of Battambang, Siem Reap and Sisophon from Siam.
According to Colonel Bernard’s Report to the Governor-General
of Indo-China of 19 March 1907, a plenary meeting of the Mixed
Commission “which was to have taken place the next day, 8 March,
was postponed indefinitely’’—Annex 50 to Rejoinder. The French
Minister in Bangkok, in his letter of 27 March 1907 to the French
Minister for Foreign Affairs, states that:

“the delay that occurred with regard to the plenary meeting of
the Commission was properly explained by the fact that topo-
graphical officers had not yet returned to Bangkok and no definitive
map could therefore be submitted for the deliberations of its
Members’.

10. The same letter of the French Minister adds:

“On 8 March the first steps were taken and the conversations
continued actively for six days. Mr. Strobel ... was definitely won
over by the prospect of an arrangement of which he perceived all
the advantages in the interest of both countries...”

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79 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

From 8 March on, a rapid succession of events followed. Colonel
Bernard was in daily conferences with Mr. Strobel. In the evening
of 13 March, the King of Siam, accompanied by his Ministers, met
Mr. Strobel at the latter’s residence for three hours and finally
“authorized Mr. Strobel to proceed to written negotiations and
recommended to expedite matters”. A draft treaty was drawn up
on 14 March and formed the basis of the negotiations. The final
text of the Treaty of 1907 was prepared on 19 March. The treaty
with its protocols and agreements was signed at Io p.m. on 23 March
1907 by the Siamese Foreign Minister and the French Minister in
Bangkok. Colonel Bernard left the Siamese capital on the 26th for
Saigon from which he sailed for France on 5 April without holding a
final meeting of the Mixed Commission to close its work he had
contemplated.

11. I have given the above brief account of the busy events
which fully occupied the time and attention of Colonel Bernard,
who was also second French plenipotentiary to negotiate the Treaty
of 1907, in order to indicate the circumstances which led to the
indefinite postponement of the contemplated plenary meeting of
the Mixed Commission of Delimitation. It was at this proposed
meeting that, among other questions, the sketch map of a frontier
line in the Dangrek sector from the foot of Pnom Padang west-
ward to Kel Pass, drawn up by Captain Oum (a Cambodian officer
and member of the French Commission, who, according to Colonel
Bernard, ‘‘could not see these ancient glories of his country without
writing or bringing him his complaints’’) was to have been discussed
and decided upon, but actually no such meeting took place. In
fact the work of delimitation of the First Mixed Commission was
left unfinished.

12. It is true that, as a result of the meeting of the Mixed Com-
mission of 2 December 1906 the Presidents of its French and Siamese
groups made a journey together along the Dangrek range and prob-
ably visited the Temple of Preah Vihear. But there is no sub-
stantial reason to suppose that they took any decisions as to the
frontier line in the Dangrek sector or as to the attribution of the
Temple. It will be recalled that they, following an agreement reached
at the said meeting of the Commission, travelled eastwards along
the range from Kel Pass by the same route which Captain Tixier
had reconnoitred in February 1905, and which was 10-15 kilometres
from the crest of the Dangrek, on the Siamese side. The purpose of the
journey had been explained by Colonel Bernard, the French Presi-
dent, when he had said that:

“from that road to the crest of the mountains, they would be able
to make all the reconnaissances that might be thought necessary
since they would be some ten to fifteen kilometres at most from
that range’”’.

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The surveying of the crest was yet to be undertaken by Captain
Oum who had just been assigned the task. These two Presidents
may have inspected the general topography of the sector and made
all the necessary ‘‘reconnaissances’ from distance but could not
possibly have fixed any precise line, indispensable to a delimited
frontier, without a complete report with sketch maps of the work
of the survey officer and it would have been equally impossible
to attribute the Temple to one Party or the other without knowing
first where the finally delimited frontier line would be located in the
sector.

13. Under Clause ITI of the Protocol attached to the Treaty of
1907 the second Mixed Commission of Delimitation set up under its
Article IV “shall determine and trace if necessary, on the spot,
that portion of the frontier which is described in Clause I of the
present Protocol”. In other words, it had the power and the duty,
in case of need, to delimit any part of the portion defined in the
latter provision, referring, obviously, to any portion which had not
been delimited or the delimitation of which had only been partially
done. But the second Mixed Commission did not avail itself of this
power as regards the work of the first Commission. Could this fact
be logically or reliably considered as showing that the first Mixed
Commission must have completed its task including the final delim-
itation of the frontier in the whole Dangrek sector? From what has
been pointed out earlier, the only decision taken at the meeting of
the first Mixed Commission on 18 January 1907 related to the
fixing of the eastern terminal point of the frontier line connecting
with the Mekong and the adoption of a line westward as far as the
sources of the Huei Don and, following the crest of the Pnom Pa-
dang, to the foot of this mountain range. This portion approximates
less than 15 kilometres of a frontier line of some 300 kilometres
long to be delimited from the said point westward to Kel Pass in
the Dangrek sector. The failure of the second Mixed Commission to
complete the unfinished work of the preceding Commission, though
it had the power to do it, was obviously due to a misapprehension of
the nature of the line adopted by the first Commission on 18 Jan-
uary 1907 as mentioned at the end of the penultimate para-
graph of Clause I of the Protocol attached to the Treaty of 1907—a
misapprehension which is explained in the following paragraph 16.

14. It is thus seen that the frontier line marked on the Annex I
map was neither approved nor even discussed by the Mixed Com-
mission of Delimitation nor was it agreed to by the French and
Siamese Presidents of the said Commission. It follows from these
indisputable facts that the map in question does not possess a
treaty character as claimed by Cambodia and therefore, as such,
obviously cannot be binding upon Thailand in regard to the issue
of territorial sovereignty over the Temple of Preah Vihear.

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81 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

15. It is contended that even if the line on the Annex I map had
not been approved by the First Mixed Commission, the Siamese
Government had requested the French Commission to make this
map as well as the other ten, and therefore the said map, though
prepared in Paris by French officers under the supervision of the
President of the French Commission of Delimitation, carried the
consent and authority of Siam. But what is the nature of the
request, and what is the real character of the map requested of
the French Commission? The answer to these questions is clearly
indicated in the Minutes of the meeting of the Mixed Commission
of 29 November 1905. Commandant Bernard stated at this meeting:

“that he wished, before the Commission started work, to thank
the Siamese Government for the proof of confidence it had just
given the French Commission by requesting that the map of the
whole frontier region should be executed by the French officers’.

General Mom Chatidej Udom said in reply:

“that by leaving it to the French Commission to draw up the map
of the frontier region, the Siamese Government had indeed wished
to show that it had complete confidence in the French officers’’.

It appears that the requested map was a separate matter not
directly connected with the work of delimitation of the Mixed
Commission, and, as such, when it was made, certainly it could
not be regarded as constituting or implying any binding obligation
on Thailand as to the character of the map to be made. The correct-
ness of this view of the nature of the request is borne out by the
Minutes of the meeting of the Mixed Commission on 17 January
1906 at which Commandant Bernard, in discussing the programme
of work for the French officers and the possibility for them to push
on with the triangulation as far as the Dangrek so as to join up
that year’s work with the work of the following year, stated:

“Tf not, Captain Tixier and Lieutenant Sée would be employed
in extending the surveys carried out by Captain de Batz and
Lieutenant Tournyol so as to give a more complete map of the
frontier region. At that moment there was no satisfactory map in
existence and it would be useful for the two countries to have.”

Clearly, this was to be a general map of the whole frontier region
and did not form a part of the regular programme of delimitation
of the Mixed Commission. Those portions of this map which con-
tained frontier lines the determination of which was within the
competence of the Commission and which were approved by it,
of course possess a treaty or conventional character, not from the
fact of a request by the Siamese Government, but from the fact of
their approval by the said Commission, and the other portions

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82 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

showing frontier lines, though also within its competence but not
yet approved by it, such as map Annex I, cannot have this character.

As to the reference to “the Siamese Commissioners’ request that
the French Commissioners prepare maps of various frontiers” made
in the letter of the Siamese Minister in Paris of 20 August 1908 to
the Minister of Foreign Affairs in Bangkok transmitting the maps
he had received from Captain Tixier of the French Commission,
I do not attach particular importance to it. For it is not known
what was the source of his information. There is no evidence of any of
the Siamese Commissioners having communicated with him about
their work or about the mapsin question. Nor does it appear that his
letter was in reply to any communication from his Government.
More probably he simply repeated what Captain Tixier had pre-
sumably told him, verbally but imprecisely, while handing him
fifty copies of the eleven maps including the Annex I map for
forwarding to the Siamese Government, on the basis of the fact
that the request of the Siamese Government for the French officers
to prepare a general map of the whole frontier region had formed
the subject of an exchange of friendly remarks between the
Presidents of the two national Commissions at the meeting of the
Mixed Commission mentioned above.

Consequently, the argument for the validity of the Annex I
map based upon the request of the Siamese Government or even
upon a request of the Siamese Commissioners, if true, to the French
officers to prepare a general map of the whole frontier region
between Siam and French Indo-China does not appear well-founded.

16. Nor, in my view, does the contention that the Protocol
annexed to the Treaty of 23 March 1907 was a confirmation of the
Annex J map have more substance. Clause I of this Protocol, after
describing the greater part of the new frontier between French
Indo-China and Siam as the result of the mutual cessions of ter-
ritory stipulated in the 1907 Treaty, states that:

“it continues in a straight line to a point situated on the Dang-Rek,
half way between the passes called Chong-Ta-Koh and Chong-
Sa-Met’’,

and then it reads in its third paragraph:

“From the above-mentioned point situated on the crest of the
Dang-Rek, the frontier follows the watershed between the basin of
the Great Lake and the Mekong on the one side, and the basin of
the Nam-Moun on the other, and reaches the Mekong down-
stream of Pak-Moun, at the mouth of the Huei-Doue, in conformity
with the line adopted by the preceding Commission of Delimitation
on the 18th January, 1907.”

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83 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

What had been decided on 18 January 1907 was to fix the eastern
terminal point of the proposed frontier line which meets the Mekong
in pursuance of the relevant provision of the Treaty of 1904 and to
approve a small portion of the frontier line therefrom as far as the
source of the Huei-Doue (Huei Don) and the end of the crest of the
Pnom Padang (Phu Pha Dang). This delimited portion was shown
in a rough sketch attached to Colonel Bernard’s letter to the Gover-
nor-General of Indo-China of the same date as the said meeting
of the Commission. No sketch map covering the whole line along
the Dangrek from the Mekong west to Kel Pass had been brought
back by Captain Oum as yet. He was then on his way west to Bangkok
and was not due there until after 20 February 1907, and the sketch
map was not completed till 5 March 1907. The Mixed Commission
could not have had this sketch at its meeting of 18 January 1907.
The only line which could have been and was “adopted by the
preceding Commission of Delimitation on the 18th January, 1907”
was the one shown in the sketch enclosed in Colonel Bernard’s letter
just mentioned. I have already referred earlier to an apparently simi-
lar misapprehension on the part of the Second Mixed Commission of
Delimitation set up under the 1907 Treaty of the character of the line
adopted by the first Mixed Commission at its meeting on 18 January
1907. In no way can the said protocol be validly said to have the
effect of confirming the whole frontier line in the Dangrek range east
of Kel Pass as marked on the Annex I map.

II

17. In the face of the established fact that neither the line shown
on the Annex I map nor a sketch of it was ever approved or seen
by the first or second Mixed Commission of Delimitation at any of
its meetings, the Judgment of the Court seeks to infer an alleged
acceptance of the said map by Siam from certain circumstances.

18. One of these circumstances is that after the eleven maps of
the different sectors of the frontier, including the Annex I map,
were prepared and printed in Paris under the supervision of Colonel
Bernard in 1908 and fifty copies of each were delivered by Captain
Tixier, a French member of the Mixed Commission of Delimitation,
to the Siamese Legation in Paris for transmission to the Siamese
Government, the Siamese Minister in Paris, after retaining two
copies each for the use of his Legation and distributing one copy
each to the Siamese Legations in London, Berlin, Russia and
America, forwarded the rest to his Government in Bangkok which
received them without raising an objection, or making a reservation,
to the frontier line marked on the Annex I map. It is also emphasized
that Prince Damrong, the Siamese Minister of the Interior, thanked

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84 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

the French Minister for sending him an extra set and even asked
for fifteen more sets for the purpose of distributing them among the
Siamese provincial authorities.

19. The essence of the argument under consideration is that the
Siamese authorities mentioned in the preceding paragraph must,
upon receiving it, have seen the line mapped and noticed the loca-
tion of the Temple of Preah Vihear on the Cambodian side, yet
they did not raise any objection. It is quite probable that the said
Siamese authorities did look at the map but it does not necessarily
follow that therefore they must have discovered the actual location
of the Temple. The said map is one of a set of eleven, and there
was no special reason why the Annex I map should have been singled
out at the time for particular attention. No question about the
Temple had been raised by either France or Siam during the nego-
tiations for the Treaty of 1904 or subsequently in the meetings of
the Mixed Commission of Delimitation. Jt had never been in issue
between the two Parties at any time before 1908. Moreover, the
Annex I map was drawn on the scale of I : 200,000, which means
that the distance of 500 metres on the ground lying between the
alleged frontier line and the Temple area is represented on the
map by a width of only 2.5 millimetres. And because the Temple is
perched on the summit of the promontory of Preah Vihear, the
mark indicating the Temple is buried in a tangle of contour lines
in a small part of the map. Even if one looks specially for the mark,
it is by no means easy to find it. The alleged reason, far from
constituting a legal basis for the presumption of Siam’s acceptance
of the Annex I map, is no more than a conjecture.

20. It was certainly not unusual for Prince Damrong to have
expressed his appreciation upon receiving an extra copy of the
whole series from the French Minister who obviously did it as a
special act of courtesy. Nor is it difficult to understand that he
should have requested more copies for distribution to the Siamese
provincial authorities, especially when it is recalled that at the time
Siam did not yet have a good modern map showing the whole
frontier region between Siam and French Indo-China, and that
the Siamese Government had previously requested the President
of the French Commission to have one made by the French topo-
graphical officers. In the light of these facts the Prince’s expression
of appreciation to the French Minister and his request for more
copies, in my view, have no special significance and cannot reason-
ably be considered to support a legal presumption of Siam’s accept-
ance of the boundary line marked on map Annex I.

21. Under an authorization of the French Minister of the Colonies
dated 26 May 1908, Captain Tixier undertook to allocate the series

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of 1x maps including the Annex I map. To the “Members of the
two Commissions” he sent 19 copies, so the Siamese members of
the first Mixed Commission of Delimitation obviously also received
their share of the copies. But this fact, in my view, does not bear
the special significance attributed to it. The said Commission had
ceased to function for more than a year, and its unfinished work
had been taken over by the second Mixed Commission set up unde1
the Treaty of 1907, so that the Siamese members of the preceding
Commission had no longer any official capacity as such. They may
or may not have examined the maps they received, but they cer-
tainly had no obligation to verify the accuracy or inaccuracy of
the maps. Whatever may have been their reaction or attitude,
their silence or neglect could not justly be considered to entail
responsibility upon the: Siamese Government as evidence of its
tacit acceptance of the Annex I map.

22. A “‘Franco-Siamese Commission for the Transcription of
the Map of the Frontier’ was organized in 1909 and held two
meetings to carry out its task. The two Siamese members, while
they performed their part of the common duties, said nothing about
the Annex I map. Could their silence on these occasions be validly
considered to have a significant bearing upon the principal issue
in the present case? According to the minutes of this body, the
first meeting was held on 25 March 1909 and “the purpose of the
Commission” was stated by Commandant Luang Bhuwanart
Narubal of Siam to be:

“To try to find a system of transcription for adoption by tke
two countries in order to obviate any misunderstanding arising
_from the perusal of maps in which the names were erroneous or
badly spelt. With that object, he had drawn rules for the tran-
scription of. Siamese characters in Roman characters and vice
versa. He then submitted his work to the French Commission and
the latter approved it after making a few modifications.” (Annex
XLVIII (c) to Cambodian Reply.)

The second meeting took place on 4 October 1909 and it is recorded
in its minutes:

“The purpose of the meeting was to determine the main lines
for the production of the general map. In the Protocol signed in
Bangkok on May 1008, following on the operations of the Com-
missions for the delimitation of the frontier between Indo-China
and Siam, one of the clauses stated that a general map of the new
frontier would be drawn up jointly by French officers and Siamese
officers.”’ (Annex XLVIII {4) to Cambodian Reply.)

The text of the said Protocol has not been produced, but the nature
of the work of the Transcription Commission is clearly indicated in
the minutes:

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86 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

“The object in view was to make available to officials of the
two nations a document of identical nature, as detailed as the scale
agreed upon would permit, which should do away with the errors
in names that were so frequent, particularly when a frontier incident
occurred...

The division into sheets as shown on the attached assembly table,
showed that, by producing the maps which are surrounded by a red
line, the whole of the abovementioned frontier zone would be covered
by fifteen sheets and three half-sheets.

The format adopted would give a height of 250 millimetres and
a width of 400 millimetres excluding borders and margins, so that
each sheet would represent a portion of territory measuring 125
kilometres X 200 kilometres.” /Zbid.)

It is thus seen from the above-quoted passages that the work of the
Commission, both as regards the transcription between Siamese
and Roman characters on the maps and as regards the production
of a general map, was entirely of a technical character to be carried
out jointly by the French and Siamese members, who were appar-
ently all experts in the field of cartography. They were not called
upon by their terms of reference to verify the accuracy or inac-
curacy of the frontier line marked on any of the maps they used
in their work nor did they have any good reason to take up the
task of verification on their own initiative. Consequently, the silence
of the Siamese members of the Transcription Commission as to the
line on the Annex I map in no way constitutes a substantial reason
to support the contention of Siam’s tacit acceptance of the said
line.

23. In 1934-1935, as the result of a survey by her own officers,
Siam discovered for the first time the erroneous location of the
Temple of Preah Vihear on the Cambodian side of the frontier line
as marked on the Annex I map. On the basis of this fact it is argued
that since she raised no question about the error until 1958, she
must be presumed to have accepted the Annex I map as correct.
It is, however, to be recalled that as soon as the relative position
of Siam vis-à-vis French Indo-China became less unbalanced as a
result of the development of world events in 1940, the Siamese
Government posted a Siamese guardian at the Temple to signify
Siam’s title of sovereignty over the area. When in 1953 Cambodia
dispatched three guardians of its own to watch the Temple, they
were sent back by the Thai (Siamese) authorities. When in 1954
the Cambodian Minister in Bangkok notified the Thai Minister for
Foreign Affairs of his Government’s intention to dispatch a detach-
ment of troops to take possession of the Temple, Thailand at once
sent a unit of its armed frontier police to the area in order to
forestall the contemplated action of the Cambodian Government.
These positive acts clearly evidence the absence of any intention
on the part of Siam or Thailand to acquiesce in or accept the said

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87 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

map line.

24. Importance is also attached to the Treaties of 14 February
1925 and 7 December 1937 and the Settlement Agreement of
17 November 1946 as further confirmation of the frontier line in the
Dangrek shown on the Annex I map. But an examination of the
relevant provisions of these instruments fails to bear out the asser-
tion. Article 2 of the 1925 Treaty states:

“The High Contracting Parties confirm and reciprocally guarantee
to respect the frontiers established between their territories by
virtue of and in conformity with the provisions of former agreements
and maintained by Article 27 of the present Treaty”;

and the relevant portion of this Article 27 reads:

“Tt shall also annul as from the same date the other treaties,
conventions and agreements concluded between France and Siam
with the exception, however, of the clauses regarding the definition
and delimitation of the frontiers (contained in the Treaty of October
3, 1893, the Convention of February 13, 1904, the Treaty of March
23, 1907 and the Protocol annex thereto) ...”

Again, Article 22 of the 1937 Treaty states:

“The present Treaty shall, as from the date of its entry into force,
replace the Treaty of Friendship, Commerce and Navigation con-
cluded at Bangkok on February 14th, 1925. It shall also annul,
as from the same date, the other Treaties, Conventions and Agree-

_ments concluded between Siam and France, with the exception,
however, of the clauses relating to the definition and demilitation
of the frontiers, the guarantee in respect thereof, and the demili-
tarization of the Mekong frontier (contained in the Treaty of October
3rd, 1893, the Convention of February 13th, 1904, the Treaty of
March 23rd, 1907 and the Protocol annexed thereto, and the Treaty
of February 14th, 1925) ...”

It can be seen from the foregoing provisions that the confirmation
is of a general character, and refers to the whole body of territorial
settlements determined by the previous treaties still in force.
Nothing is said therein about the particular frontier line in the
Dangrek marked on the Annex I map. Indeed, the question of this
confirmation appears clearly to have been only an incidental one
because the main subjects of negotiation related to quite different
subjects, as the titles of both instruments indicate, namely, Treaties
of “Friendship, Commerce and Navigation between Siam and
France”.

25. It is argued that if Siam had considered the Temple of Preah
Vihear to have been incorrectly placed on the Cambodian side of
the frontier line shown on the map Annex I, she should have made
a reservation to that effect in the Treaties of 1925 and 1937, the
Settlement Agreement of 1946 and the Report of the Commission
in 1947, because all these instruments confirmed or restored the

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88 JUDGM. I5 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

territorial settlements stipulated in the earlier Treaties, including
the Treaty of 1904 and the frontier lines delimited by the Mixed
Commission set up under the said Treaty; and that her failure to
do so must be regarded as evidence of her tacit acceptance of the
frontier line on the Annex I map.

26. As has been pointed out earlier, the said confirmation is
entirely of a general and incidental character. The two Treaties
of 1925 and 1937 deal principally and almost exclusively with the
questions of ‘Friendship, Commerce and Navigation between
Siam and France”. Of the 29 Articles and 2 Protocols of the Treaty
of 1925, only Articles 2 and 27 relate to the confirmation of the
definition and delimitation of the frontiers provided for in the former
Treaties. The Treaty of 1937 contains 24 Articles, 1 Protocol and
6 Exchanges of Notes, but only one of them, Article 22, provides
for the said confirmation. These two occasions could hardly be
regarded as appropriate for making a reservation as to the question
of sovereignty over the Temple area. There is no evidence to show
that in 1925 Siam had already found out that the Temple was
incorrectly located, and, even assuming it had, it would still appear
reasonable to ask whether the occasion, such as it was, was one
which would normally have called for or justified a reservation of
the character stated. By 1937 Siam’s own survey department had,
in 1934-1935, as already noted, discovered the mistake as regards
the location of the Temple on the Annex I map, but the circum-
stance in which the Treaty of 1937 was negotiated was not so
different from that of the 1925 Treaty as to warrant a reservation.

27. Moreover, the two bilateral instruments referred to above
could not have been intended, and certainly they do not stipulate,
to cure any inherent defect in any of the previous Treaties, proto-
cols annexed to them, and agreements relating to territorial settle-
ments and delimitations of boundary lines. This observation applies
even with greater force to a document unattached to any of the
said instruments such as the map Annex I. By their general language
they simply confirm these instruments as they stand with their
perfections and imperfections; they detract nothing from their
contents nor add anything to them. The fact that the Annex I map
was not approved by the Mixed Commission of Delimitation set
up under the Treaty of 1904 still stands as a pertinent fact, and
its lack of a treaty character remains true today.

28. The Settlement Agreement of 1946 was negotiated and con-
cluded at the request of France for the purpose of restoring the
status quo ante in regard to the whole boundary line between
French Indo-China and Siam prior to the Convention of Tokio
of 9 May 1941. In fact it provided for the abrogation of the said
convention and for the restoration im toto of the territorial settle-
ments confirmed in the Treaties of 1925 and 1937. If this act of
restoration is to be regarded as an act of confirmation of the terri-

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89 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

torial settlements effected by the Treaty of 1904, it certainly
amounts to no more than what is confirmed by the Treaties o°
1925 and 1937.

29. The Report of the Conciliation Commission was issued i
1947 after Siam and France had respectively argued for and again::
certain territorial changes proposed by the former, the Siame.
claim aiming to recover certain whole provinces from France.
It would have been out of place for the Siamese Government to
raise, on that occasion, the question of soveréignty over the small
piece of territory as the Temple area, the more so, since this ques-
tion was not in issue at the time. Moreover, the Temple continued
to be watched by a Siamese guardian since 1940. In view of this
fact, it would seem to have been more appropriate for France to
make a reservation or protest at the time, but none was made
either.

30. The fact that the Siamese Royal Survey Department pro-
duced a map in 1937 showing Preah Vihear as lying in Cambodia
is, in my view, of no significance as regards the question of Thai-
land’s attitude to the Annex I map. As explained by Counsel
for Thailand, it was intended for use by the Siamese military
authorities. It is nothing unusual that in the privacy of a country’s
own survey department maps of any kind, of whatever origin,
should have been reproduced for its own use either for their scale
and useful details or for other reasons.

31. Thailand’s use of a map before the Franco-Siamese Commis-
sion of Conciliation in 1947, in which the Temple of Preah Vihear
is located on the Cambodian side, may appear striking at first
sight. But it has no more significance than the map of 1937 just
considered, when the circumstances in which it was used are taken
into account. As has been stated earlier, Thailand’s case before the
Commission consisted of claims the chief of which was for retro-
cession from France of several. entire provinces which she had
reluctantly yielded to her mainly in 1904-1907, and the map was
obviously used to indicate their location and limits. The question
of the Temple of Preah Vihear was not in issue, since to raise this
question at the time, involving the territorial sovereignty of an area
of the size covered by the ruins of this sanctuary along with Thai-
land’s principal claim for the retrocession of several provinces would
obviously have appeared incongruous and out of place. The occasion,
as has been noted earlier, was clearly not a compelling or appropriate
one for this purpose.

32. The incident of a visit of Prince Damrong to the Temple of
Preah Vihear in January 1930 and the presence of the French
Resident of the neighbouring Cambodian province of Kompong
Thom on the scene in his official uniform with decorations and the
appearance of the French flag on a pole in front of his own pavilion

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go JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

is regarded as particularly significant. But the facts are simple and
do not support the claim of significance assigned to it. The Prince
then was no longer Minister of the Interior; he was President of the
Royal Institute of Siam with duties connected with the National
Library and archaeology. He made the trip to Preah Vihear in the
latter capacity, accompanied by his three daughters and a suite of
officials. The French Resident had with him his assistant and the
noted French archaeologist Henri Parmentier. When the parties
met on the Temple grounds, speeches of welcome and thanks were
exchanged and toasts were drunk. The Resident said he had come
to present the compliments of the Superior Resident and his own
to the Prince for his ‘reputation as a sincere friend of France
and her subjects and protégés” and also as a well-known archaeo-
logist. No allusion was made by the French Resident to any ques-
tion about the territorial sovereignty over the Temple, though
Parmentier, speaking as a fellow archaeologist and extolling
the fame of the Prince for his interest in archaeology, referred to
the Temple as “another of the monuments of our Cambodia”
(Annex LIII b to Cambodian Reply). The Prince, in his reply, said
that “he had come to see the Temple and had nothing to do with
politics”.

33. According to a statement of his daughter who accompanied
him on the visit, he suggested to the French officer “to get out of his
uniform’. The display of his national flag by a foreign official,
even by a private Occidental, was not an uncommon sight in an
Asiatic country during that epoch; it may or may not have displeas-
ed the Prince. There was no clear cause for the Prince to make
a protest at the time or to ask his Government to lodge one in Bang-
kok, though in the affidavit of one of his daughters who was with
the Prince during this visit, it is stated that he privately considered
the hoisting of the French flag at the place of their meeting and
the donning of his official uniform by the French officer to be
“impudent’’. The despatch of a letter of thanks and some photo-
graphs taken during his visit by Prince Damrong to the French
Minister for transmission to the French authorities in Indo-China
meant no more than a customary act of Oriental courtesy. In a
word, the incident viewed in the light of the available evidence and
the then prevailing conditions in Siam—and, in fact, in other
parts of Asia—did not have the meaning and significance sought
to be inferred from it.

34. It is of course an undisputed fact that both the pavilion in
which the French Resident and his associates spent the night and
the flag pole on which was hoisted the French national flag had
been put up specially for the temporary purpose of welcoming the
Siamese Prince. In view of this fact, taken together with the other

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gi JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

related circumstances referred to above, it may be reasonable to
presume that the French officer’s presence had been intended to
assert French authority or Cambodia’s sovereignty over the Temple
area and that the Prince or the Siamese Government must have
regarded the episode in itself as constituting a sufficient cause for
protest. However, even if this presumption is correct, it does not
necessarily follow that they should not have waited for a more
propitious occasion to make one than in the actual circumstances
prevailing at the time. The reason why “he did not ask the Govern-
ment to lodge a protest’’ was eloquently stated by his daughter,
Princess Phun Phitsamai Diskul, who went with him during the
visit to the Temple, to be as follows:

“It was generally known at the time that we only 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.”’

In view of the history of the relations between Siam and French
Indo-China at the time and earlier during the preceding decades,
the Princess’s explanation seems natural and reasonable. It was a
situation not peculiar to Siam. It was, generally speaking, the
common experience of most Asiatic States in their intercourse
with the Occidental Powers during this period of colonial expansion.

35. Thailand’s failure to reply to the four notes addressed by the
French Legation in Bangkok to the Ministry of Foreign Affairs, at
first enquiring about the presence of Thai guardians at the Temple
of Preah Vihear, later stating that the ruins of this sanctuary
were “indubitably situated in the territory of Cambodia’, asking
that measures should be taken to put an end to the situation, and
setting out the French point of view as to the historical and legal
aspects of the frontier question, is regarded as another ground for
presuming Thailand’s tacit acceptance of the boundary line marked
on the map in question. What were the actual considerations which
induced the Siamese Government to refrain from replying to the
notes in question is not known. But whatever they were, whether
it was because the French claim was clearly based on an error in
relying on the Protocol attached to the Treaty of 1907 or it was
because Siam had always regarded the Annex I map as of no bind-
ing character, or for any other reason, her consistent attitude and
conduct during the five decades since 1904 in respect of her title
to sovereignty over the Temple area are facts which clearly refute
the presumption. Moreover, it will be recalled, as Prince Naradhip
stated at the time of negotiations with the Cambodian plenipo-
tentiaries in 1958, that the Thai guardians of the Temple had re-
mained on post since 1940. This is a significant fact to be noted; it

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92 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

indicates the true intention and attitude of Thailand in respect
of the question of sovereignty over the Temple area.

Til

36. Since Cambodia’s claim of sovereignty over the area in
which the Temple of Preah Vihear is situated is based upon an
alleged treaty character of the Annex I map which shows its loca-
tion of the Temple on the Cambodian side of the frontier line marked
thereon, and since the said map has been shown to be devoid in
this character, it is important to consider the comparative attitude
and conduct of the two Parties as tending to throw light on their
respective intentions in regard to the question of sovereignty over
the Temple.

37. With reference to this point, Cambodia has produced a num-
ber of documents and photographs relating to the ‘‘administrative
tours” of the Governor of Kompong Thom “to Preah Vihear”
and to the visits of several foreign missions, accompanied by him,
to the Temple. According to the dates stated therein, all these
visits and tours took place during the term of office of Governor
Suon Bonn who also testified at the hearing. In other words, it
was from 1948 to 1953. The more important of the documents
submitted include a decree of the Governor-General of Indo-China
of 16 May 1925 relating to the classification of the historic monu-
ments and including the Temple of Preah Vihear among them
(Annex XIT to Memorial), a report of Commandant Lunet de La-
jonquiére in 1907-1908 on the ancient monuments, including the
Temple of Preah Vihear, published in the Bulletin of the Archaeolo-
gical Commission of Indo-China in 1909, in which he stated:

“The last delimitation of the frontiers attributes Preah Vihear,
which is studied in that work under No. 308, to France.” (Cam-
bodia’s Annex LXXXVI.) |

38. Thailand, on her part, has filed with the Court a number of
affidavits and copies of original documents as evidence of acts of
administrative control by Siamese authorities in exercise of sov-
ereignty in the area in which the Temple of Preah Vihear is situated.
These acts relate, among other matters, to the building of roads
to the foot of Mount Preah Vihear, the collection of taxes by
Siamese revenue officers on the rice fields of Mount Preah Vihear,
the grant of permits to cut timber in the area, the visits and in-
spections by Siamese forestry officers, the taking of an official
inventory in 1931 of ancient monuments which included the Temple
of Preah Vihear, the visit of the Under-Secretary of the Ministry
of the Interior in 1924-4925 and the visit of Prince Damrong in
1930, both visits including the Temple of Preah Vihear.

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93 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

39. It is difficult to find substance in the argument which rejects
Siam’s positive acts of administrative control in the disputed area
as evidence of conduct as sovereign for the alleged reason that
these acts were performed by local or provincial authorities in
contradiction with the consistent and undeviating attitude of the
central Siamese authorities to the frontier line as mapped. This is
an assumption refuted by the facts as shown. Moreover, adminis-
trative acts in the Mount Preah Vihear area, on which the Temple
of the same name is situated, must necessarily have been performed
by local officials as they were in other areas—acts such as collecting
taxes, building roads, inspecting the forests, etc. They carried out
these duties under the supervision of the Governor of Khukhan
Province upon whom they depended for orders. The Governor
himself was appointed by the King of Siam and was responsible to
the Government in Bangkok. He not only had to submit periodic
reports of his administration to the central government but also to
carry out its instructions. The correspondence relating to the visit
of the Deputy Minister of the Interior to his Province on an
inspection tour in 1925 (Annexes .37 a-37 1 to Counter-Memorial)
and a like visit of Prince Damrong in 1930 (Annexes 39 @, 39 6 and
39 ¢ to Counter-Memorial), both visits including the Temple of
Preah Vihear, shows further that the central government was in
close contact with the provincial authorities, who in turn kept in
close touch with the local officials. The “report of H.R.H. Krom
Phra Nakhonsawan Woraphinit to His Majesty the King” in 1926
on the results of his inspection tour of the provinces is particulariy
illuminating. There can be little doubt that the acts of adminis-
trative control performed by the local authorities in the Temple
area, far from contradicting any attitude of acquiescence in the
said frontier line, reflect and confirm the consistent belief of the
central Siamese government that the said area was under the
sovereignty of Siam. In this connection it is pertinent to quote a
particularly significant passage in the report of His Royal Highness
just mentioned:

“The Governor [of Khukhan] informed me that in the area of the
District Office of South Sangkha within the frontier mountain there
is a stone temple on five elevations which is very big and beautiful,
called Phra Viharn. (In the French map it is called Preah Vihear.)
This stone temple is within our territory.” (Annex 22 to Counter-
Memorial.)

40. The belief that the Temple of Preah Vihear is within Siamese
territory has not been confined to the prince alone but entertained
generally by the Siamese central and local authorities. It is well

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94 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

supported by a series of relevant facts. Before “‘the last ratification
of the Treaty [of 1904] with France” the Siamese Minister of the
Interior “sent telegrams to the various Governors-General forward-
ing a draft Proclamation concerning the territories ceded to France
with the advice that it is to be made ready for posting, upon rati-
fication, for the information of the inhabitants”. Upon ratification,
he sent telegrams, dated 10 December 1904:

“advising that the Proclamation should be posted within 15 days
from receipt of the telegrams and asking for confirmation of the
dates on which the local authorities in the territories ceded to
France shall have received the same, so that the French Govern-
ment may be informed accordingly for the purpose of taking over
such territories”’.

On 16 December 1904 he informed the Siamese Foreign Minister

further that:

“a telegram has'been received from H.R.H. Sanphasit, His Ma-
jesty’s High Commissioner for Isan, No. 19 dated the rith instant,
that advice has been given with instructions to Champasak and
Khukhan to forward the Proclamations to 14 districts where all
official work should stop so that the work of handing over the
territories to France may be attended to’.

Khukhan is the province in which the Temple of Preah Vihear is
situated.

41. From the passages quoted above, it appears certain that all
the territory ceded to France under the Treaty of 1904 was handed
over to the French authorities in due course and that the Mount
Preah Vihear, on the top of which the Temple of the same name
stands in ruins, and the immediate vicinity were not understood
by either Party to be part of the ceded territory. For it is an un-
controverted fact that the Siamese authorities continued to en-
force administrative control over the area without any protest
from the French authorities or any objection by the local inhabit-
ants. This fact is significant, because the documentation shows
that the French authorities had been alert and vigilant in having
France’s newly acquired territorial sovereignty respected by Siam.
Thus, take one example out of many contained in the documenta-
tion to illustrate French alertness and vigilance. When five months
after certain villages situated in the territory between the Pnom
Padang and the Mekong had been handed over to the French
authorities in January 1905, a Siamese official informed the local
populations that the villages in question belonged to Siam and
forbade them to obey the orders of the authorities of Bassac in
Cambodia and later the same Siamese official sent agents to take
a census of the inhabitants, animals and vehicles in those villages,
the authorities of Bassac protested at once. The matter was reported
to the Administrator of that province, the Resident Superior of

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95 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

Laos and the Governor-General of Indo-China. The question was
finally brought to the attention of the President of the Siamese
Commission of Delimitation by the President of the French Com-
mission. An investigation was made in due course, the complaints
were found to be justified, and the Siamese President attributed
the matter to “a mistake in the interpretation of the Treaty”.
Yet as regards the Temple area, though the Siamese local author-
ities continued to exercise administrative control after the Treaty
of 1904 as they had done before, the French authorities did not
protest at any time nor did the local inhabitants make any com-
plaint, a course of action which they would certainly have taken if
they had considered the Temple area to be part of the ceded terri-
tory.

42. Even though it might be said that the question of which
Party was at the time entitled to the right of exercising sovereignty
in the said area could not have been definitively settled until after
the determination of a precise line of frontier by delimitation, the
fact that, with the plausible exception of the episode of Prince
Damrong’s visit to the Temple of Preah Vihear in 1930, the
French authorities did not at any time assert French authority or
Cambodia’s sovereignty, or raise any question or make any protest
to Siam against continued performance of administrative acts in
the Temple area until 1949 cannot be explained, except on the
ground of their tacit recognition of Siam’s sovereignty over the
said area, or, presumably, on the ground of their knowledge that the
frontier line on the Annex I map which had been drawn tentatively
by Captain Oum, a Cambodian Member of the French Commission
and an apparently ardent Cambodian irredentist}, had not been
approved by the Franco-Siamese Mixed Commission of Delimitation
to make it binding on Siam.

43. Another important fact evidencing Siam’s consistent belief
in her title of sovereignty over the Temple area should be noted.
In accordance with a Royal Proclamation of 17 January 1924,
relating to the inspection and preservation of archaeological ob-
jects in Siam, Prince Damrong, President of the Royal Institute,
addressed two communications to the Governor-General of Nakhon
Ratchasima, respectively of 23 July 1930 and 22 July 1931, calling
for a verified inventory of ancient monuments in the Monthon. On
31 August 1931, the said Governor-General sent a reply enclosing
an inventory in which ‘Khao Phra Viharn [Temple of Preah
Vihéar] constructed of stone with fourteen edifices, built on five
elevations, some of which are rectangular in shape of various sizes”
is clearly stated to be one of the four ancient monuments in Chang-
wat Khukhan, one of the provinces under his jurisdiction. (Thai-
land’s Annexes 78 a-78 b.)

1 See Annex 58 to Rejoinder.
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96 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)
IV

44. The foregoing account of facts and circumstances summarizes
the situation which underlies the present dispute between the Par-
ties. To resolve the dispute by a presumption of Thailand’s tacit
acceptance of the Annex I map on the ground of her silence or
failure to react on several enumerated occasions runs, in my view,
counter to the established facts and to the real character of the
circumstances alleged to be relevant. For the purpose of evaluating
the legal significance of silence relating to a claim of sovereignty
words and conduct are the recognized indices or criteria. In the
present case I have examined the evidence and found no statement
or declaration of any kind by Siam or Thailand which recognizes,
or can be considered to recognize, Cambodia’s title to sovereignty
over the Temple area. As to conduct, far from implying any accept-
ance of the Annex I map, she has consistently indicated a belief
on her part throughout the past decades that the area in question
continues to belong to her own sovereignty.

45. Thailand’s claim in the present case to sovereignty over the
Temple involves no question of good faith on her part. International
jurisprudence attributes importance to silence as a relevant factor
in determining the intention of a party in regard to a claim of
sovereignty only in the light of its unequivocal conduct and of the
attendant circumstances. Thailand’s exercise of sovereignty in the
form of sustained administrative control in the Temple area bears
witness to her true intention. The evidence adduced refutes the
argument in support of a presumption of her tacit acceptance of
Cambodia’s title to sovereignty over the Temple area as marked
on the Annex I map.

46. Moreover, there is no valid ground in law for holding Thai-
land accountable for acquiescence. The rule of Roman law that
“he who keeps silent is held to consent if he must and can speak”
is, in my view, not applicable because the several occasions which
are alleged to have been such as to call for a protest or reservation
by her have been shown earlier to be entirely of a different character.
Silence or failure to react, even when it constitutes a relevant
factor, cannot alone be considered as implying recognition
or acceptance of the other party’s claim of sovereignty. In the
Anglo-Norwegian Fisheries case, this Court attached legal impor-
tance to “prolonged abstention” of the United Kingdom from
protesting against the Norwegian system of delimiting territorial
waters but only as one of the factors: “The notoriety of the facts,
the general toleration of the internationl community, Great
Britain’s position in the North Sea, her own interest in the
question, and her prolonged abstention would in any case warrant

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97 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

Norway’s enforcement of her system against the United Kingdom”
(.C.J. Reports 1951, p. 139). In the case under consideration, no
evidence has been adduced of any declaration or act by Siam or
Thailand pointing clearly to her intention to recognize or accept
Cambodia’s claim of sovereignty over the Temple area.

47. Nor is there substantiai ground for application ot the principle
of preclusion. The legal basis of that principle is that one party
has relied on the statement or conduct of the other either to its
own detriment or to the other’s advantage. In the present case
Thailand has not made a statement at any time indicating her
acceptance or recognition of the frontier line marked on the Annex I
map. As regards the allegation of her silence as warranting the
presumption of such acceptance or recognition, it is plainly contra-
dicted by evidence of sustained State activity in exercise of
sovereignty in the Temple area. There is no evidence to show that
France, as Cambodia’s protecting State, ever relied on Thailand’s
silence to her own detriment. Thailand’s unequivocal conduct
relating to the Temple area has continued to be the same after
1004-1908 as it had been before this period. France’s own failure
to make a protest or raise any question about it until 1949 appears
to have confirmed Thailand’s belief that the said area had always
remained under Thai sovereignty under the Treaty of 1904. Nor
could it be validly argued that Thailand had derived special ad-
vantage from France’s reliance, if there had been such, on her
alleged silent acceptance of the Annex I map in 1908. In fact, as
has just been shown, for over 40 years no such reliance appears
to have been placed by France on the alleged binding character of
the said map. What benefit Thailand may have received from the
stability of the frontiers marked on the other ten maps, she has
been entitled to it under the Treaty of 1904 and the delimitation
work of the first Mixed Commission. These maps have not been
put in question at any time. As regards the frontier of the Dangrek
sector, if Thailand could be said to have enjoyed the advantage
of stability, apart from her constant belief of the Temple area
being always under her own sovereignty, it was due, not to any
reliance by France upon Thailand’s alleged acceptance of the
Annex I map as binding on her, but rather to an apparent doubt
on the part of the French authorities as to where the correct line
really was with reference to the location of the Temple—a doubt
which explains their continued silence and failure to raise any
question in the face of the continued exercise of sovereignty by
Thailand in the said area. In the light of the foregoing reasons,
the application of the principle of preclusion against Thailand in
the present case is, in my view, not justified.

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98 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

48. The usual object of a boundary treaty, of course, is to achieve
certainty of the frontier to which it relates in accordance with the
principle of stability, and the recognized procedure to attain this
object is by joint delimitation on the ground. In the present case
it was precisely this procedure which had been stipulated in Arti-
cle 3 of the Treaty of 1904. Therefore, the argument which seeks
to support the application of the principle of stability by setting
aside the clear intention of the Parties, as expressed in the said
Article providing for careful delimitation by a Mixed Commission,
and by basing it upon the presumed consent of Siam to an undeli-
mited line on the Annex I map, seems to me to be strained and
unreal.

V

49. From the foregoing examination of the pertinent facts in this
case and consideration of the law applicable to it, I summarize my
twofold conclusion as follows:

(x) that Cambodia has not succeeded in establishing the alleged
binding character of the Annex I map; and

(2) that Cambodia’s contention of Thailand’s silence as tacit
acceptance of the frontier line marked on the map Annex I
is refuted by fact and not warranted in law.

50. Where is, then, the frontier line in the Dangrek with reference
to the Temple area and on which side of this line, in Thailand or
Cambodia, is the Temple of Preah Vihear situated? The answer is
provided, in principle, by Article r of the Treaty of 13 February
1904, which defines the frontier in the Dangrek as the ridge of “‘the
watershed between the basins of the Nam Sen and the Mekong,
on the one hand, and of the Nam Moun, on the other hand, and
joins the Pnom Padang chain the crest of which it follows eastwards
as far as the Mekong’’. Of course it goes without saying that what
is pertinent of this frontier in the present case, as has been stated
at the outset, is only that portion which relates to the area in which
the Temple in question is situated.

51. The essential task, then, in order to decide the case, is to
apply or interpret the 1904 Treaty. But where is the true location
of the treaty-defined watershed? This is a crucial question, and a
correct answer must be given. The two Parties in the case have
submitted reports by their respective experts which purport to
give the necessary answer. However, while the four reports, two
from each side, agree on the general location of the watershed line
in the disputed area, they disagree on the crucial precise line. The
International Training Centre for Aerial Survey of Delft, Holland,
on behalf of Thailand, presents a line which places the major part of

g6
99 JUDGM. 15 VI 62 (DISS. OP. JUDGE WELLINGTON KOO)

the Temple ground on the Thai side whereas Doeringsfeld, Amuedo
and Ivey, “Specialists in Photogeology and Photo-interpretation”,
of Denver, Colorado, submit a line placing the main portion of the
Temple on the Cambodian side. The conflicting character of the
two expert recommendations presents a perplexing problem, and the
difficulty has been further increased by the outcome of the examina-
tion and cross-examination of the experts and witnesses at the oral
hearing. From their testimony, it appears that besides the I.T.C.
line and the D.A.I. line, there are two other possible alternative
lines: one at Point 3 near Letter F on Map Sheet 2 attached to
Annex 49 of the Counter-Memorial, and another one from Contour
Line point No. 605, which is just a little west of the D.A.I. line
close to the western side of the Temple and which almost coincides
with the latter line.

52. There is also the question of the nature of the terrain of the
saddle near F, and its elevation, which, according to Thailand’s
expert, who went out to the Temple area and made an investigation
on the spot, blocks the eastward flow of stream 3 on the Map Sheet 2
into the Cambodian plain and causes it to turn westward to join
stream 2 flowing northward into Thai territory. Counsel for Cam-
bodia casts doubts on the accuracy of this statement and, in support
of his incredulity, he cites, among other works on archeaology, a
passage from “L'Art Khmèr classique” by Henri Parmentier,
Chapter IV, in which this author records his study of the Temple
of Preah Vihear on the spot in February 1930 and mentions “a
rocky plateau” near the north-east corner of the Temple, which

“falls in a somewhat steeper slope towards the east where there
is a rocky ravine, the water from which flows towards Cambodia,
forming a fairly considerable stream, the O Kbal Pos Nakrac’’.

The divergence of these two views, moreover, raises the following
questions: what is the altitude of the saddle near F? Is its elevation
uniform throughout its surface? What ts the character of its ter-
rain? Does it bear any traces of change by the hand of man?

53. Since there is no available record of any sketch map drawn
up by Captain Oum on the basis of the survey he carried out in the
Dangrek sector east of Kel Pass in the period of December 1906 and
January and February 1907—which was the dry season—showing a
precise line of the watershed in the said sector, except what is
claimed by Cambodia to have been marked on the Annex I map,
whereas the I.T.C. line was verified on the spot during the wet season
in July 1961, it is also pertinent to ask for the purpose of ascertain-
ing the precise line: To what extent does the topography of the

97
100 JUDGM. 15 Vi 62 (DISS. OP. JUDGE WELLINGTON KOO)

stream channels in the Temple area vary between the dry and wet
seasons of a normal year?

54. Furthermore, Cambodia has maintained that what is relevant
in regard to the location of the watershed in the Temple area is
where it was in the period of 1904-1908 and not where it is in
1961-1962. This point gives rise to other questions: could the loca-
tion of a watershed change in the course of time by natural pheno-
menon such as an earthquake, faulting of rock-beds, landslide or
rock fall, etc.? Or is the watershed now found by the experts of
both Parties in the Temple area part of the same watershed which
the negotiators of the 1904 Treaty had in mind or which Captain
Oum presumably marked on his sketch map on the basis of his
survey on the spot in the Dangrek sector?

55. All the foregoing questions are of a technical character and
call for an independent expert or experts to supply reliable answers.
I am of the opinion that the Court would have been well advised,
under Articles 44 and 50 of the Statute, to send its own expert or
experts to investigate on the spot and make a report of their
observations and recommendations, as was done in the Corfu
Channel case (I.C.J. Reports 1949). Such a report would have been
of great assistance to the Court in deciding the case by law on the
basis of all the relevant facts of a technical as well as other character.
I for one feel unable to reach a final conclusion satisfactory to
myself without knowing the answers to the technical questions
which I have defined above and which, in my view, bear a vital
importance for a correct determination of one of the crucial issues
in the present case.

(Signed) WELLINGTON Koo.

98


REQUÊTE INTRODUCTIVE D’INSTANCE ADRESSÉE

AU GREFFE DE LA COUR, CONFORMÉMENT A

L'ARTICLE 40 DU STATUT, PAR L’INTERMEDIAIRE

DE LA LÉGATION DE FRANCE A LA HAYE, LE
16 JANVIER 1923. (VAPEUR « WIMBLEDON ».)

A Monsieur le Président et à Messieurs les Juges de la Cour
permanente de Justice internationale.

Les soussignés, dûment autorisés par les GOUVERNEMENTS
de SA MAJESTÉ BRITANNIQUE, de la RÉPUBLIQUE FRANÇAISE,
de SA MAJESTÉ LE Ror D'ITALIE et de SA MAJESTÉ L’EMPE-
REUR DU JAPON, Principales Puissances alliées aux termes
du Traité de Paix de Versailles du 28 juin 1919, agissant
conjointement : |

Vu les articles 380 à 386 dudit Traité;

Vu les articles 37 et 40 du Statut de la Cour et l’article 35,
alinéa 2, du Règlement de ladite Cour ;

Ont l'honneur de vous adresser la requête suivante :

Aux termes de l’article 380 du Traité de Paix de Versailles :

«Le canal de Kiel et ses accès seront toujours libres
et ouverts sur un pied de parfaite égalité aux navires de
guerre et de commerce de toutes les nations en paix
avec l’Allemagne. »

Le 21 mars 1921, au matin, le vapeur britannique Wim-
biedon, affrété par la société française d'armement «Les
Affréteurs réunis », en route sur Dantzig avec un chargement
de 4.000 tonnes de marchandises (matériel militaire), s’est
vu refuser, par les autorités allemandes, l’accès et le libre pas-
sage du canal.de Kiel

Répondant à la protestation qui, de ce chef, lui avait été
adressée, le 23 mars 1921, par l'Ambassadeur de France à
7

Berlin, le Gouvernement allemand a renouvelé le refus de
passage et prétendu justifier ce refus en alléguant que la
cargaison du vapeur Wimbledon consistait en matériel de
guerte à destination de la Pologne, que le Traité de Paix entre
cette Puissance et la Russie n’était pas encore ratifié, qu’il
y avait donc état de guerre entre elles et que les règlements
allemands sur la neutralité interdisaient le transit sur le
territoire allemand du matériel de guerre à destination de
. ces deux pays.

Aux termes de l’article 386 du Traité de Paix de Ver-
sailles : |

« Au cas de violation d’une des dispositions des articles
380 à 386 ou en cas de désaccord sur l'interprétation
de ces articles, toute Puissance intéressée pourra faire
appel à la juridiction instituée dans ce but par la Société
des Nations. »

Aux termes de l’article 37 du Statut de la Cour :

« Lorsqu'un Traité ou Convention en vigueur vise le

renvoi à une juridiction à établir par la Société des
Nations, la Cour constituera cette juridiction. »

En conséquence, et sous réserve de tous mémoires, contre-
mémoires, et en général de tous moyens et preuves à présenter
ultérieurement à la Cour :

PLAISE A LA COUR:

Donner acte aux Puissances requérantes que pour toutes
notifications et communications relatives 4 la présente
affaire, elles élisent domicile au siège de la Légation de France
à La Haye ;.

Notifier la présente requête, conformément à l’article
40, alinéa 2, du Statut de la Cour au Gouvernement de
l'Empire allemand ;

Dire et juger, tant en l'absence que présence dudit Gouver-
nement et après tels délais que, sous réserve d’un accord
entre les parties, il appartiendra à la Cour de fixer :
8

Qu’a tort les autorités allemandes ont refusé le 21 mars
1921 au vapeur Wimbledon le libre accès du canal de Kiel ;

Que le Gouvernement allemand est tenu à la réparation du
préjudice subi de ce chef par ledit navire, et évalué à la
somme de frs. 174.082,86 centimes, et aux intérêts à 6°/,
Yan, à dater du 20 mars ro21.

(Signé) CHARLES BENOIST. CHARLES M. MARLING.
' Fro. ViTTORIO NEGRI.