DISSENTING OPINION OF SIR PERCY SPENDER

I regret that I am not able to associate myself with the Judgment
of the Court. The reasons which have led me to differ from the
conclusion at which the Court has arrived should I think be stated.

In the nature of things different minds approach problems in
different ways. The approach to a legal problem is no exception.
What is to be solved will be solved acsording to the manner of him
who solves it.

The present proceedings are burdened with a great volume of
evidence, a considerable amount of which is quite irrelevant.

The task is to sift the wheat from the chaff.

The case, in my view, is peculiarly one in which a conclusion may
safely be reached only by a detailed examination of the evidence
and a strict application thereto of the relevant principles of inter-
national law.

My own examination has led me to the conclusion that Cambodia
has failed to make out any claim for relief.

*
* *

Article 40 of the Statute of the Court provides that the Appli-
cation to the Court shall state the subject of the dispute. Article 32
(2) of the Rules of Court provides that it must also, as far as possible,
state the precise nature of the claim and give an accurate statement
of the facts and grounds on which the claim is based.

The subject of the dispute in this case is the Temple of Preah
Vihear (in Siamese called Phra Viharn) over which the Kingdom of
Cambodia claims sovereignty. Its claim as stated in the Application
is based upon the terms of international conventions delimiting the
frontier between it and Thailand.

The convention which the Application states is fundamental to
the present dispute is the Treaty of 1904. This Treaty, supplemented
. by a protocol dated 29 June 1904, relates to a long line of frontier
between Thailand and Indo-China. Article 1 thereof which dealt
with a part of this frontier line stated, inter alia, that on the moun-
tain chain of the Dangrek—on which the Temple happens to be
situate—the frontier line should follow the line of the watershed
until it reached a mountain range known as Pnom Padang, the
crest of which it should follow towards the east as far as the river
Mekong. Article 3 stipulated that the delimitation of ‘the frontier

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102 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

determined by Article 1” should be carried out by a Mixed Com-
mission. Such a Commission was duly established.

Cambodia’s contention, as stated in the Application and Memo-
rial, is that the work of delimitation was carried out from 1904
to 1907 and that, so far as concerns the delimitation of the frontier
on the chain of the Dangrek, ‘‘the final frontier line was adopted
by the Delimitation Commission during the year 1907” in the form
of a map or map sheet known in this case as Annex I. On that
Annex the area where the Temple is situated is shown as within
Cambodia. This “frontier line” is stated in the Application as
having been “formally approved” by a Protocol to the Treaty
of 1907.

As will subsequently appear this last statement had no foundation.
The statement was a complete misapprehension of the true position,
first on the part of France, and later by Cambodia, and throws
considerable light upon these proceedings and upon the reasons why
Cambodia ultimately became obliged to move away from her case
as formulated in her Application and resort to other and new
grounds upon which to seek a basis for her claim for relief. There
was no approval of the frontier line on any part of the Dangrek by
the Protocol of 1907. The reference to what had been “formally
approved” related to a decision of the Mixed Commission recorded
at a meeting of 18 January 1907 when a point on the eastern ex-
tremity of the northern frontier between Indo-China and Siam, of
which frontier the Dangrek formed the western sector, was deter-
mined.

*
* *

In the course of the oral proceedings Cambodia has endeavoured
to extend her claim as stated in the Application and Memorial and
the grounds on which it rests. But the principal ground on which it
relies remains that stated, namely, that Annex I represents the
delimitation of the Dangrek frontier by the Mixed Commission
under the Treaty of 1904.

*
* *

In its Application and Memorial the Kingdom of Cambodia asked
the Court to declare that the territorial sovereignty over the Temple
belongs to it. In neither did it describe the actual Temple area over
which it claims sovereignty nor has it since done so. It is however
inherent in its Application and Memorial that its claim of sover-
eignty over the Temple is based upon the proposition that Annex I
was a delimitation of the Dangrek frontier by the Mixed Commission
established under the Treaty of 1904—and solely by that Commis-
sion. Sovereignty over the whole area shown on Annex I as south
of the frontier line was, it claims, accordingly vested in it. This

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area in fact included the site of the Temple and the land immediately
surrounding.

*
* *

I shall first address myself to the principal ground on which
Cambodia bases her claim to relief, the only ground indeed which
Cambodia, in accordance with her Application, came to the Court
to litigate.

The juridical foundation for the claim of Cambodia is to be found
in Articles 1 and 3 of the Treaty of 1904. The legal system by
virtue of which the frontier was to be delimited is set forth in
Article 3 and nowhere else. It was for the Mixed Commission to
be created under Article 3, and solely for that body, to make the
delimitation.

The Temple finds no mention in the Treaty. Before a decision
can be made as to which State has sovereignty over the Temple it
is necessary to decermine what is the line of the frontier. This is
the central question.

The frontier was defined in Article 1 of the Treaty. What was
to constitute a sufficient delimitation of that frontier was for the
Mixed Commission to decide. It could, if it so wished in respect of
any part of the frontier, delimit it by a reference in terms to the
text of the Treaty and Protocol. That was a matter entirely for
itself to decide.

Whatever the delimitation made, however, it was not a delimi-
tation at large, it was controlled by Article 1 of the Treaty which
“determined” the frontier 1. Subjecc to whatever power of adaption
the Mixed Commission may inherently have possessed, the delim-
itation had to be established on the basis of the criterion laid
down in Article 1 which on the Dangrek was the line of the water-
shed and only on the basis of this criterion. If it was not on the
basis of this criterion, any purported delimitation would lack any
legal force.

*
* *

The Minutes of the meeting of the Mixed Commission from the
date of its first meeting on 3 January 1905 to that of 18 January
1907, which was to prove its last, were placed before the Court by
Thailand.

In the course of oral argument it was faintly suggested by Cam-

1 See Article 3 of the Treaty.
IOI
104 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

bodia that perhaps one or more Minutes might be missing, or
perhaps all decisions taken by the Mixed Commission had not been
recorded, or perhaps in particular a decision as to which State
sovereignty in the Temple should be attributed was not noted.

There is no foundation for these suggestions. For quite apart
from the internal evidence which the Minutes themselves provide
there is other documentary evidence which establishes beyond
teasonable controversy that the Minutes produced are a complete
record of the deliberations and the decisions of the Mixed Com-
mission. A report by Colonel Bernard, the President of the French
Commission of Delimitation, of 14 April 1908 to the French Minister
of the Colonies in which he forwarded an original copy of the
Minutes indicating the number forwarded, establishes this. It is
utterly unlikely that any decision of delimitation failed to be rec-
orded in these Minutes.

The Minutes were the work of French and Siamese secretaries
appointed by the Mixed Commission at its first meeting, who were
“responsible for drawing up the minutes”. The practice was for
them to be drawn up by the French and submitted to the Siamese
for approval and thereafter to be signed respectively by the Presi-
dent of each Commission. The Minutes were manifestly prepared
with considerable care and in great detail. No record is to be found
within them to support in any way the contention of Cambodia
that a frontier line corresponding to Annex I or indeed a frontier
line on the Dangrek shown on any map or sketch was at any time
either discussed or decided upon by the Mixed Commission. Nor is
there any reference at all to the Temple of Preah Vihear which
indeed does not appear to have acquired any real importance for
either State until many years later.

The matter of the frontier on the Dangrek was referred to at the
first meeting of the Mixed Commission early in 1905. It was decided
that the work of delimitation of the frontier from the Great Lake
to the Dangrek and thence easterly to the Mekong should be post-
poned until a later season.

Nothing directed to this end was undertaken until December of
1906. It was not till then that the frontier line defined in Article 1
of the Treaty of 1904 received any direct consideration.

At a meeting of the Mixed Commission held on the 2nd of that
month it was agreed to make a reconnaissance from the Great Lake
to the Dangrek and thence easterly to the river Mekong to the
point at which the crest of the mountain range known as the
Pnom Padang met that river. This reconnaissance was in fact made
and was completed by 10 January 1907, and so far as the Dangrek
mountain range is concerned, apparently before the 3rd of that
month, since at that date the Mixed Commission was at Ban Mek
near the Mekong.

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I05 JUDGM. I5 VI 62 (DISS. OP. SIR PERCY SPENDER)

The labours of the Mixed Commission had until December 1906
been directed to the region of Luang Prabang!, which was far to
the north of and beyond the Kingdom of Cambodia, and to the
region, within the Kingdom, between the Great Lake and the sea
to the south.

In December 1906, when the labours of the Mixed Commission
were directed to the frontier defined in Article x of the Treaty which
was north of the Great Lake, Colonel Bernard had already other
ideas as to where the western frontier line south of the Dangrek
should be, ideas which were not in conformity with the frontier
stipulated in Article x of the Treaty of 1904.

He was opposed to any part of the frontier being determined by
a parallel and a meridian as laid down in that Article. It is evident
from the Minutes of the Mixed Commission that he was determined.
if he could, to prevent this taking place. His constant view made
known at the first meeting of the Mixed Commission was that “it
was absolutely essential that there should, above all, be a frontier
that was visible and known to everyone”. The frontier as stipulated
in Article 1 of the Treaty north of the Great Lake, notwithstanding
the clear terms of that Article, was inadmissible 2.

At the first meeting of the Mixed Commission in January 1905
he had lost no time in making his views known. The record of the
Minutes of that meeting reads as follows:

“Commandant Bernard said that the task which their respective
Governments had entrusted to the Commission was that of de-
termining the frontier by following in its main lines the Treaty
concluded between France on 13 February 1904... Thus as far as
that frontier was concerned to the north of the Great Lake, it was
stipulated that the frontier should start from the mouth of the river
Stung Roluos and should follow the parallel from that point east-
wards until it met the river Kompong Tiam; then turning north-
wards, it was to he along the meridian from that meeting point to
the mountain chain of the Pnom Dangrek.

Such a frontier was inadmissible between two civilized nations
such as France and Siam...

He never departed from this view. As late as the last meeting
held by the Mixed Commission on 18 January 1907 he stated that:

“When accurate maps were available [italics added] a new frontier
defined by topographical features should be sought.”

Unable, as the Minutes reveal, to persuade the leader of the
Siamese Commission to agree with his views on a new frontier line
to the north of the Great Lake—the latter who throughout the
work of the Mixed Commission endeavoured as a general rule to

1 Article 2 of Treaty of 1904 and Article II of the Protocol.
2 Minutes of Meeting of 31 January 1905.

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106 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

adhere to the Treaty line, having made it clear that he was not
empowered to discuss “any frontier different from that of the Treaty”
fitalics added}—Colonel Bernard conceded it was in those circum-
stances necessary for the Mixed Commission to define strictly the
parallel and meridian indicated in the Treaty. In so doing, he stated,
they would have established the rights of the two States and this
would subsequently permit the final frontier in that region to be
settled by a system of compensation.

The record reveals that at this point of time Colonel Bernard,
and since October of the preceding year, had in mind plans to
extend the frontiers of France a considerable distance to the west
of those provided in the Treaty of 1904 and was concentrating his
efforts to carry them into effect.

This finally he succeeded in accomplishing through the Treaty
of 23 March 1907.

*
* *

The leader of the Siamese Commission having been insistent upon
following the Treaty line, the two Commissions on 5 December
1906, by compromise, agreed upon a point which should be deemed
to be the mouth of the river Stung Roluos within the meaning of
Article 1 of the Treaty of 1904, and on 3 January 1907, again by
compromise, agreed upon a point which should be deemed to be
where the parallel from the former point met the river Prec Kom-
pong Tiam within the meaning of the said Article.

Until these two points could be agreed upon it was not possible
either to fix the frontier line from the Great Lake north to the
Dangrek, or the commencing point on the frontier of the Dangrek
whence it ran in an easterly direction to the Mekong.

Only one further meeting of the Mixed Commission was in fact
to be held, namely, on 18 January 1907.

At its meeting of 2 December 1906, when the Mixed Commission’s
reconnaissance of the Dangrek and easterly to the Mekong was
agreed to be made, it had been decided that a Captain Oum—an
officer in the French military forces—‘‘would survey the whole
region of the Dangrek’’ whilst other French officers would carry out
the survey measurements. A Captain Kerler with another French
officer was to start work from the Great Lake working north to
join up with the Dangrek where it was met by the meridian. The
survey work was done exclusively by French officers, as was almost
universally the case throughout the whole of the frontier regions.
Captain Oum and Captain Kerler are those officers whose work on
the spot is noted on the left-hand top corner of Annex I. The
topographical surveys could not in any manner constitute delimi-
tations. It is common ground between the Parties that the topo-
graphical and survey officers were vested with no discretion and
had no power to delimit or discuss any question of delimitation of

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107 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

any part of the frontier. Their duties were strictly technical.

Captain Oum was to commence his survey at the far eastern
extremity of the Dangrek. He could not have commenced much
before 10 December. He worked from east to west. The reconnais-
sance made by the Mixed Commission was made from west to east
and to the north generally of the crest of the Dangrek. It is utterly
unlikely that the Mixed Commission and Captain Oum made any
contact and the Minutes do not suggest they did nor does any
contemporary document.

On 18 January 1907 the topographical and survey officers were
still engaged on their work. As the Minutes of that date reveal,
the survey or map sheets of the region were still in course of prepa-
ration. Only a little over two weeks had expired since Captains
Oum and Kerler had received instructions to commence their sur-
veys, the former operating in particularly difficult terrain where
progress was bound to be slow. On 18 January the Mixed Com-
mission was at Pak-Moun on the Mekong. It had completed its
reconnaissance of the frontier from the Great Lake to the Mekong
at least a week before then.

The following day the two Presidents signed a minute of delimi-
tation in respect of one of the small plots of land which had been
agreed to be ceded to France by Siam under Article 8 of the
Treaty of 1904. This proved to be the Mixed Commission’s last
official act.

*
* *

From as early as October 1906 Colonel Bernard had been agitating
his superiors to enter into negotiations with the Siamese Govern-
ment with a view to acquiring ‘‘all the old Cambodian provinces”.
If this could be accomplished it would result in carrying the western
boundaries of Indo-China a considerable distance to the west. In
that same month he was successful in obtaining official approval
of his proposals. From that moment on his activities were mainly
directed to this end. It is evident he was anxious to accomplish his
purpose as soon as he could and then to wind up the Mixed Com-
mission.

In the first week of March, on the arrival in Bangkok of Mr.
Strobel, the adviser to the Siamese Government, his activities in-
creased in their intensity.

On his journey through Paris Mr. Strobel had been informed of
difficulties on the frontier north of the Great Lake. From the
moment of Mr. Strobel’s arrival events moved rapidly. They throw
an interesting light upon the circumstances in which the work of
the Mixed Commission came to an end.

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108 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

The French topographical officers arrived in Bangkok at different
times between 18 February and 4 March. They had by this latter
date just completed their work in the field. Provisional maps of the
frontier region were not completed w##:} 5 March, and no final maps
were in existence. À meeting of the Mixed Commission was pro-
visionally called for 8 March by Colonel Bernard.

On this day however the first steps were taken by Colonel Bernard
in discussions with Mr. Strobel to negotiate a new boundary treaty
with Siam. The meeting of the Mixed Commission called for the
same day was “‘postponed indefinitely”.

Colonel Bernard’s conversations with Mr. Strobel continued for
six days.

At this point of time His Majesty the King of Siam was about
to depart on a visit to France. Mr. Strobel sought to postpone
solution of the question of absorption of the ‘old Cambodian
provinces” until the King’s return. Colonel Bernard was insistent
upon it being settled before the King’s departure.

Finally he persuaded Mr. Strobel to his point of view. He was,
as the record abundantly reveals, an efficient officer and a domi-
nating personality.

From that moment events moved rapidly.

A draft treaty was first drawn up on 14 March. It was signed
on 23 March. Colonel Bernard left Bangkok on the 26th and on
5 April he sailed from Saigon for France where he remained.

No further meeting of the Mixed Commission was held. It
dispersed and ceased to exist.

Colonel Bernard has given us his own commentary on these
events:

“We had to take as the frontier a certain parallel and then
discover at what point that parallel cut across a river called the
Preck Kompong Tiam—and from that point we had to draw a me-
ridian as far as the Dangrek mountains. But the river did not
exist... A fresh start had therefore to be made and we could not
complete the delimitation without concluding what was really a
new treaty.

Moreover the need for tearing up the 1904 Treaty and for preparing
a new one had become quite obvious to us the previous year.”

+
* *

Annex I was one of eleven map sheets of the whole frontier
regions covered by the Treaty and Protocol of 1904. Whatever
survey sketches may have existed previously, these map sheets did
not come into being until November of 1907. This is therefore a
critical date since at that point of time the Mixed Commission no

1 Lecture delivered by Colonel Bernard to the Société de Géographie, 20 Decem-
ber 1907.

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109 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

longer existed. Since the Mixed Commission never met after
18 January 1907 and the topographical officers did not complete their
work until at least a month later, it is evident that no report from
Captain Oum and no sketch or working map in relation to the
Dangrek frontier region of any description could ever have been
placed before the Mixed Commission for discussion or decision.
None ever was.

In the face of the facts stated—all of which are established beyond
controversy—it is an unproductive exercise to have recourse to
presumptions or inferences from the subsequent conduct of the
Parties in an effort to establish that the Mixed Commission must
in fact have made a decision delimiting the Dangrek by agreeing
to the frontier line shown in or in the form of Annex I or in the
form of any sketch or map.

No presumption can be made and no inference can be drawn
which is inconsistent with facts incontrovertibly established by the
evidence.

These facts admit of only one conclusion, namely: that the
frontier line on Annex I was not a line agreed upon by the Mixed
Commission as a delimitation of the frontier of the Dangrek.

*
* *

Independently of the facts stated it would seem a little unlikely
to say the least that, when the Treaty and Protocol of 1907 was
drafted, if there had been any map or sketch agreed to by the
Mixed Commission which delineated the frontier line on any part
of the Dangrek or the Pnom Padang east to the river Mekong that
no reference whatever to such a map or sketch would have been
made in the text of that Treaty.

Article I of the Protocol.to the Treaty of 1907 described the new
frontier between Indo-China and Siam. Included within the de-
scription was the frontier which extended along the Dangrek—
from a point considerably west of the 1904 Treaty line—and ran
across the Pnom Padang easterly to the river Mekong. Yet no map
or sketch relating to the Dangrek is mentioned.

There was indeed in Article I of the Protocol of 1907 a reference
to a sketch of the frontier, but this sketch did not cover the region
of the Dangrek shown in Annex I. There was also a reference therein
to a line (tracé) adopted by the Mixed Commission. This however
related to the eastern extremity of the frontier above mentioned,
and to a decision taken by the Mixed Commission at its last
meeting on 18 January 1907 and recorded in the Minutes of that
date to the effect that the thalweg of a certain river—the Huei
Don—should be the agreed point at which the crest of the Phnom
Padang met the river Mekong within the meaning of Article 1 of
the Treaty of 1904.

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IIO JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

Colonel Bernard played the principal role in the drafting of the
Treaty and Protocol of 1907 particularly, I would think, in the
technical description of the frontier. If an inference may be drawn
it would seem permissible to assume, certainly all the probabilities
would suggest, that at the date of that Treaty and Protocol, namely
23 March 1907, if there had been any map or sketch which up to
that point of time had been agreed to by the Mixed Commission as
delimiting any part of the frontiers from the Kel Pass on the
Dangrek along the Pnom Padang to the east, it would at least have
warranted some reference. The fact that there is no mention of
any such decision is in the circumstances powerful, indeed; I think,
overwhelming evidence that no such delimitation had been made.

Moreover, having in mind the great importance which today is
said to have attached to the Temple in 1907-1908, it seems scarcely
conceivable that, if as has been suggested, the Mixed Commission
during its reconnaissance of the Dangrek made some decision of
delimitation dealing with the Temple or Temple area, or the frontier
in the region of the Temple, that it should be mentioned neither in
the Minutes nor in the Treaty and Protocol of 1907 nor in any
contemporaneous document.

*
* *

The reference in Article I of the Protocol of 1907 to a sketch and
“tracé” immediately following the description of the frontier line on
the Dangrek and Pnom Padang is, I think, of no little importance in
this case. It has a distinct bearing upon the manner in which Cam-
bodia has presented her case and why quite late in the proceedings
she shifted from the ground on which she relied in her Application
and added grounds which were neither set forth nor foreshadowed
therein.

It is evident from paragraph 6 of the Application that Cambodia
regarded this reference in Article I of the Protocol of 1907 as a
formal treaty confirmation of the frontier line shown in Annex I.

In this—a very important part of her case—she was mistaken. It
is evident also that France and later Cambodia were under a total
misapprehension as to the meaning of this reference in the Protocol
of 1907 for very many years.

* * *

When the meeting of the Mixed Commission of 18 January 1907
had concluded, Colonel Bernard believed that the work of the Mixed
Commission, at least in the field, had been completed. He said so
in so many words in a telegram of the 28/29 January 1907.

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III JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

If there were any decision of the Mixed Commission made by it
during its reconnaissance of the Dangrek which, for some quite
unknown reason, was not in any manner referred to in either the
Minutes of 3 January or 18 January—or indeed on the next day
when they met again together—it is manifest that it could not
have been in the form of any line appearing on any sketch or map
since, not only was there not then even a topographical sketch map
of the frontier region in existence, but the topographical survey
work, without which no line of the watershed of any description
was capable of being drawn up and decided upon, was unfinished.
Captain Oum was still in the Dangrek.

If then there had been any prior decision delimiting the northern
frontier when the Mixed Commission held its meeting on 18 January
1907, it could never have been a decision to adopt a line corre-
sponding with that on Annex I, or a line shown on a sketch or map.
It would seem probable that it could only have been one to the
effect that between the point on the Kel Pass on the west and an
agreed point at the Mekong on the east the frontier line would be
that stipulated in Article x of the Treaty, namely the line of the
watershed on the Dangrek and the crest on the Pnom Padang.

Although, however, it is established that there never could have
been any delimitation which adopted a line on any sketch or map,
it does not follow that there was no delimitation of the Dangrek
by the Mixed Commission.

The question whether there was any delimitation of the Dangrek,
either in itself, or as part of the total northern frontier, and, if there
were, in what form, will now be pursued.

*
* *

Since the Minutes of the Mixed Commission cover, as I am satis-
fied they do, all meetings of the Mixed Commission and record all
decisions taken by it, if there were any delimitation of the northern
frontier line, in particular of the Dangrek, it should be capable of
being ascertained from them.

One possibility has been canvassed during the case, namely that
during the reconnaissance of the northern frontier made by the
Mixed Commission there may have been a decision taken by it,
in which it was decided that the frontier line in the region of the
Temple should for some local or other reason run in such a manner
that the Temple would be on the Cambodian side of the boundary.

Apart from what I think is the inherent unlikelihood of such a
decision, it is straining credulity too far to suggest that it would
find no mention in the Minutes of the Mixed Commission. I am

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112 JUDGM. I5 VI 62 (DISS. OP. SIR PERCY SPENDER)

quite unconvinced by attempts to explain this away by a suggestion
that perhaps there was not sufficient opportunity to record the
decision after the Mixed Commission had completed its reconnais-
sance, and that perhaps such a decision or at least one which
related to the delimitation of the Dangrek generally would have
been recorded at the meeting called for 8 March had it been held.

There was an opportunity on 3 January to record whatever
decisions the Mixed Commission may have made in the course of
its reconnaissance. If that opportunity was not sufficient there was
another on the 18th of that month. Moreover, if any delimitation
in relation to the Temple region had been made by the Mixed Com-
mission it passes understanding why it—-or any decision other than
those recorded in the Minutes—was not mentioned at any time by
Colonel Bernard in his numerous official letters and reports to his
superiors at the time, and in particular was not mentioned in his
report of 20 February 1907 to the French Minister in Bangkok—a
document of cardinal importance in the case—when he reviewed
in full the delimitation under the 1904 Treaty made in the course
of its final campaign and covering as it did the frontier line from
the Great Lake to the Mekong.

Moreover Colonel Bernard—as appears from his final report dated
14 April 1008 to the French Minister of the Colonies before referred
to, had “in letters written day by day” reported to the Minister
“all the incidents that occurred’’ during the course of the delimi-
tation. Yet not the slightest hint of any decision in connection with
the Temple area or the region of the Temple is to be found.

Colonel Bernard attached to this report a number of documents
including the Minutes of the Mixed Commission which in his view
were “from the diplomatic point of view of considerable im-
portance”’.

It does not seem likely that Colonel Bernard would have sent
incomplete minutes or if for any reason there had, on 18 January
1907, been any decisions of delimitation which had not been rec-
orded, particularly a decision relating to the Temple itself, that
he would have failed to make the record complete by referring to
them.

*
* *

On 18 January 1907 the Mixed Commission believed that it had
completed the task of delimitation assigned to it under the Treaty
of 1004.

The Minutes note that on that day it had fixed the point at
which the crest line of the Pnom Padang met the Mekong within
IIo
113 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

the meaning of Article x of the Treaty of 1904. Immediately fol-
lowing this notation it is recorded that the frontier line had been
“thus determined”.

What frontier line is referred to? Was it just the frontier line at
the point at which the northern frontier line met the Mekong?

In my view the reference is to the whole frontier line from the
Great Lake to the Mekong which was the subject of the Mixed
Commission’s third and last campaign directed to the delimitation
of the frontier defined in Article 1 of the Treaty of 1904.

The question is whether the evidence establishes that the Mixed
Commission did delimit the whole frontier line defined in that
Article; and if so whether there can, with sufficient certainty, be
extracted from the Minutes the nature of the delimitation made on
the Dangrek.

No difficulty presents itself in ascertaining the delimitation made
by the Mixed Commission from the Great Lake to the Dangrek.
No difficulty arises in fixing on the Dangrek the western extremity
of the northern frontier as determined by it. None arises in respect
to the eastern extremity of that frontier.

The question however is whether there is evidence which suffi-
ciently establishes a delimitation—particularly on the Dangrek—
of the frontier between these two extremities.

*
* *

Since there is not to be found in the Minutes of the Mixed Com-
mission a record of a decision of delimitation specifically referring
to the Dangrek, it might appear that the conclusion should be that
there never was a delimitation of the Dangrek of any description.

In the course of sifting the evidence I have however become
persuaded to the opinion that the probabilities and the evidence
both point to the conclusion that the Mixed Commission did make
a decision delimitating the Dangrek and it did so by determining
that, along the whole of the northern frontier between two agreed
points, one on its western, the other on its eastern extremity, the
frontier should follow the treaty line; that of the line of the water-
shed on the Dangrek and the crestline of the Pnom Padang.

The northern frontier from the Kel Pass which was its western
extremity, to the point on the Mekong where the Pnom Padang ran
dewn to it which was its eastern, was one frontier line. Because
however the Temple happens to be situated on the Dangrek range
and because Annex I happens to cover that region of the Dangrek
on which the Temple is situated, attention throughout this case
has been concentrated on that part of the Dangrek which is within
the purview of Annex I and more particularly on that small portion
of the frontier line in Annex I which is immediately adjacent to the
Temple. This fixation of attention on Annex I and upon this small

III
114 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

sector of the frontier line adjacent to the Temple has tended to
distract attention from the fact that the northern frontier was not
a number of separate frontier sectors and was not considered by the
Mixed Commission on that basis. It was one line of frontier and
the Mixed Commission dealt with it as such.

#
* *

The beginning of December 1906 marked what Colonel Bernard
referred to as the third campaign of delimitation.

At that point of time the Commission had completed its task of
delimitation of all the frontier defined in the Treaty and Protocol
of 1904 with the exception only of that from the Great Lake north
to the Dangrek and thence easterly to the Mekong.

As has been noted the western frontier line north of the Great
Lake to the Dangrek had been delimited by decisions identifying
the meridian and the parallel. Colonel Bernard remained dissatisfied.
He was awaiting preparation of the maps of the region known as
Siem Reap so as to take up again with the Siamese Commission the
matter of substituting a natural and visible line for what he re-
garded as the artificial line stipulated by the Treaty.

Subject however to this particular point which was not one of
delimitation but of exchange of territory to achieve a natural line
of frontier, the work of delimitation, in Colonel Bernard’s view at
least, was completed.

It is unlikely that the Mixed Commission having, during the
season 1906-1907, set itself the task of delimiting the frontier from
the Great Lake to the Mekong would have left its work unfinished,
the northern frontier undelimited. It seems more probable that
their work was finished when the meeting of 18 January concluded,
and that the only reason why the meeting called for 8 March was
cancelled and the Mixed Commission thereafter ceased to function
was because the subject-matter on which it would have deliberated,
namely the substitution by way of a system of compensation of a
natural and visible line for the treaty line of the parallel and meri-
dian, was about to be settled by the Treaty of 1907.

It hardly seems reasonable to believe that Colonel Bernard would
have departed for France as he did unless he was fully satisfied
that, with the signing of the 1907 Treaty, not only had the problem
of the artificial line been resolved, but also the Mixed Commission
had completed its task of delimitation of the northern frontier.

That this is the view which he genuinely held appears from his
telegram of the end of January 1907 to the French Minister at
Bangkok, in which he said:

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II5 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

“delimitation work accomplished without incident. Frontier line
definitively determined except the Siem Reap region.”

This is confirmed by a despatch dated 31 January 1907 on behalf
of the French Minister of Foreign Affairs to the French Minister of
the Colonies, in which it is said:

“The representative of the Republic in Siam informs me that
Colonel Bernard, after completing the work of delimitation of the
Siamese frontier, has just left Ubone for Bangkok where he is ex-
pected to arrive on 10 February. I understand that, throughout the
operations, relations with the Royal Commissioners left nothing to
be desired and that the frontier line has been definitively determined
except in respect of the region of Siem Reap.”

I do not doubt that the view expressed in these two documents,
which is confirmed in other official documents of the same time,
correctly represents the views of the Presidents of both the French
and the Siamese Commissions.

The statement that the frontier had been definitively determined
is consistent with the Minutes of the Second Mixed Commission
appointed under the Treaty of 1907 to delimit the new frontiers in
which, when dealing with a sketch of the proposed frontier of the
Dangrek west of the Kel Pass placed before it on 22 March 1908,
there appears the statement ‘the latter pass is the point where
the new frontier line rejoins the former one”.

Since there is no reason to doubt the statements made by Colonel
Bernard at the time, it seems proper to conclude that the northern
frontier in fact had been delimited and that such delimitation must
have been completed by 18 January 1907, the date of the Mixed
Commission’s last meeting.

On that date the Minutes record as follows:

“Colonel Bernard passed to the question of the determination of
the frontier in the region of Pnom Pa Dang (Phu Pha Dang). Accord-
ing to the terms of the treaty that frontier followed the crest... as
far as the Mekong... In order to have a very distinct frontier in the
immediate neighbourhood of the river the thalweg of the Huei Don
could be taken as the boundary. The frontier would go up that thalweg
[i.e. of the Huei Don] as far as the source of the watercourse and
would then follow the crest of the Phu Pha Dang to the south west. The
valleys of all the watercourses which flowed into the Mekong to the
east and to the south of that line would belong to French Indo-China
and those of all the watercourses which flowed into the Mekong or
into the Semoun on the west and to the north would belong to Siam.”

The President of the Siamese Commission accepted this proposal,
immediately following which there appear the words previously
referred:

“The frontier line having been thus determined...”
It is known that at this date the topographical and survey officers
were in the field, from which they were not to return until a month
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116 JUDGM. I5 VI 62 (DISS. OP. SIR PERCY SPENDER)

and more later. It would seem however that the Mixed Commission,
having made this decision—the last decision of delimitation set out
in the Minutes—regarded the frontier line as having been deter-
mined by it—at least so far as it could be done by it on the spot.

%
* *

The statement that “The frontier line” had been ‘thus deter-
mined” is not free from doubt. It could and on its face appears to
refer solely to the fixing of the point at the Mekong and the frontier
immediately adjacent. Read however in the light of the repeated
statement of Colonel Bernard that the whole frontier had been
definitively determined, the Minutes of 18 January are I think a
reference to the whole frontier line to the south west of the Mekong
—from the reconnaissance of which frontier the Mixed Commission
had just returned—and that the decision fixing the point at which
the frontier met the Mekong represented the last decision required
to be taken to complete the delimitation of the whole frontier.

A reading of the Minutes which covers this third and last cam-
paign of delimitation and of the contemporaneous documents in my
opinion confirms this. |

It was for the Mixed Commission and for it alone to determine
what was a sufficient delimitation. It was at liberty to delimit any
part of the frontier by reference to its Treaty definition. It is signi-
ficant that the Mixed Commission under the 1907 Treaty in deli-
miting the frontier on the Dangrek west of Kel Pass did precisely th:s.

*
* *

Any agreement to deviate from the Treaty line of the watershed
on the Dangrek under any inherent power of adaptation is excluded
since, not only is there no evidence whatever to suggest that the
Mixed Commission ever contemplated any deviation from the
line of the watershed, but at the verv last meeting of the Mixed
Commission and on the same day on which the decision fixing the
frontier point on the Mekong was noted, the President of the Siamese
Commission had made it clear he had no authority to discuss “any
frontier different from that of the Treaty’. Furthermore, since any
question of there having been some unrecorded delimitation of or
in relation to the region of the Temple area or the Temple itself
must, for reasons already given, be dismissed from consideration,
there seems little doubt that, if the delimitation of the frontier
under the Treaty was completed, as Colonel Bernard specifically
states as the fact, and as the Minutes themselves go to indicate,
it must have been the line of the watershed on the Dangrek which

II4
117 JUDGM. I5 VI 62 (DISS. OP. SIR PERCY SPENDER)

it was agreed should constitute the frontier line in that region.

The Presidents of the two Commissions were practical men. The
mountain ranges of the Dangrek and the Pnom Pa Dang were in
inhospitable and forbidding terrain. They were called on to make
a practical decision.

No question of demarking the northern frontier ever arose and,

so far as the record shows, that frontier has never been demarked
during the fifty odd intervening years. It remains much the same
today as it was then. The Mixed Commission appears to have de-
cided to fix the points of the extremities of the northern frontier
on the west and on the east and to have agreed that between those
two points the frontier needed no further delimitation other than
the Treaty itself provided.
_ The stipulation of the line of the watershed on the Dangrek—and
the.crest line on the Pnom Padang was itself an obvious and ap-
propriate way of defining definitively and with certainty the north-
ern frontier line. There is no reason why the Mixed Commission
having once fixed or decided to fix the points of its extremities
should not have delimited that frontier by reference to its definition
in the Treaty. The line of the watershed—and the crest line—were
natural and permanent lines. There are, as the Judgment of the
Court points out, boundary treaties which do no more than refer
to a watershed line or a crest line and which make no provision for
any further delimitation. It is not evident why the Mixed Com-
mission should have felt obliged to give to the line of the watershed
—or the crest line—any more specific delimitation than that which
the Treaty already provided. As already noted, the Mixed Com-
mission under the 1907 Treaty in delimiting the Dangrek west of
the Kel Pass did not feel obliged to do so. That Mixed Commission
recorded its decision specifically to read “From the last mentioned
point the frontier inclines to the East, following the watershed be-
tween the basin of the Great Lake and that of the Semoun as far as
the Kel Pass.”

It is a misconception of the functions of the Mixed Commission
to suggest that it was bound to give or should be expected to have
given a further definition to the northern frontier or any part of it
beyond that which the Treaty already provided.

The northern frontier was after all a part only, and a lesser part
both in magnitude and importance, of the whole frontier described
in the Treaty and Protocol of 1904.

It is moreover in my opinion without warrant to suggest that
France and Siam did not attach any special importance to the line
of the watershed as such. This suggestion is not reconcilable with

LI5
118 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

the fact that in the Treaty of 1907, more than two months after
the Mixed Commission had held its last meeting, it is the line of the
watershed which is again stipulated should be the frontier line on
the Dangrek and when in 1949 France and later Cambodia, in
1954, protested Thailand’s occupancy of the Temple area, it was the
line of the watershed as defined in the Treaty of 1907 which, it was
insisted, continued to be the frontier between the two States.

In particular there is no reason whatever why the Mixed Com-
mission should not have agreed that, from a fixed point on the
Dangrek where that range was met by the meridian, the frontier
should be the line of the watershed on the Dangrek until it joined
the Pnom Padang and then the line of the crest of that mountain
range as far as the fixed point at the Mekong. Indeed there seems
no practical reason why this should not have been precisely the
decision it did take.

Nor is there any reason why a delimitation of the Dangrek re-
quired any line shown on any map either to establish a delimitation
or to confirm one. Nowhere does the Treaty of 1904 give any in-
dication that any map was necessary or considered desirable to
accomplish a delimitation of any part of the frontier.

The assertion that it was the map line of the watershed, not the
- Treaty line of the watershed, which was regarded as of overriding
importance, I do not find supportable. If the assertion were correct,
it would mean that agreement between the two States was not in
1908-1909 a mere formality as has been contended; it was the very
gist of the delimitation of the Dangrek. The map would itself consti-
tute the delimitation. If the assertion were correct all that needs
to be said is that the two States in 1908-1909 could not have
conducted themselves in a more casual and inconsequential manner
in matters affecting territorial sovereignty.

If the delimitation of the northern frontier had been made by
the Mixed Commission in 1906-1907 in terms of the line of the
watershed as defined in Article 1 of the Treaty of 1904, a map
subsequently produced by France or Siam was not in any manner
necessary to give effect to that decision. A frontier line shown on
such a map would possess no probative value—except to the extent
to which it was in conformity with the decision of delimitation of
which the map in a general sense might be said to have been an
outcome.

If the Mixed Commission did in fact delimit the Dangrek, it
would seem evident that it did so by reference to the Treaty line
of the watershed.

That this was the course followed by the Mixed Commission finds
I think confirmation in a number of documents.

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I19 JUDGM., 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

In the first place the procedure followed accords with that laid
down by the Mixed Commission at the commencement of its labours
in 1905, namely that it would be sufficient to determine the principal
points through which the frontier in any region passed}.

It accords also with the procedure which, as will appear, was
followed in other frontier regions covered by the Treaty of 1904
where a watershed line was to form part of the frontier line?.

The procedure appears to have been constant.

Light upon the meaning of the decision of the Mixed Commission,
recorded in the Minutes of its Meeting of 18 January 1907, is shed
by a letter of the same date written by Colonel Bernard immediately
after the meeting to the Governor-General of Indo-China in which
he said:

“The frontier line which I have indicated summarily on the
attached sheet is as follows: Starting from the Mekong the frontier
follows the course of the Nam Lon as far as its source and thereafter
the crest of the Phu Pha Dang / Pnom Padang ] to the southwest as far
as the watershed between the Mekong and the Nam Moun. The valleys
of all the watercourses which are tributaries of the Mekong and are
Situated to the east and south of the line belong to French Indo-

hina...’

This is clearly enough a reference not only to the crest line on
the Pnom Padang which the frontier line was to follow but as well
to the watershed line on the Dangrek in terms of Article 1 of the
Tréaty of Ig04. -

Attached to the letter was a rough sketch. It shows the point
at which the frontier met the Mekong, as agreed on 18 January
1907, and the general direction of the line of frontier for a short
distance south west of that point.

The report by Colonel Bernard of 20 February 1907 to the French
Minister in Bangkok, already referred to, in which he reviewed at
length the third and last campaign of the Mixed Commission, affords
further confirmation.

Dealing with the frontier line of the Dangrek and the Pnom
Padang as far as the Mekong he had however little to say, but
what he did say is eloquent enough. Read in the light of the facts
which have been established, it does more than negative any sug-
gestion that there may have been some special delimitation in
respect to the Temple area, or that the two Presidents may have
decided to depart from the Treaty line of the watershed; it also
establishes that a delimitation of the Dangrek was made and how
it was made.

Colonel Bernard reported as follows:

1 Minute of Meeting of 7 February 1905.
2 See Article 2 of the Treaty and Articles I and II of the Protocol.

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120 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

“All along the Dangrek 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 the Pnom Padang adjoins the Mekong.
On this point there was no possible discussion for the mountain joins
the river at one point only about seven kilometres below Paknam.”

At the date of this report it will be recalled not even a provisional
map of the Dangrek or Pnom Padang frontier regions was in
existence.

Further, in the Protocol of the Treaty of 23 March 1907, in the
drafting of which Colonel Bernard had played such a key part,
Article I thereof describes the new frontier which had been agreed
to in the March negotiations.

After describing the boundaries of the new frontiers in the south
and the west, it indicated the point some hundred kilometres more
or less to the west of the Kel Pass where the new western frontier
met the Dangrek. It went on to provide:

“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 downstream of Pak-Moun
at the mouth of the Huei-Doue / Huei Don], in conformity with the
line /éracé] adopted by the preceding Commission of Delimitation
on the 18th January, 1907.”

In the light of this treaty provision it cannot, I think, be con-
templated that any decision of the Mixed Commission under the
Treaty of 1904 could have departed in any way from the line of the
watershed.

Colonel Bernard, who knew exactly what was decided by the
Mixed Commission during the third campaign and the basis on
which the delimitation of the northern frontier was effected, must
have understood that the fixing of the point at which the Pnom
Padang adjoined the Mekong, as recorded in the Minutes of 18
January 1907, was the last decision necessary to be taken to delimit
the whole of the northern frontier.

The fact that the second Mixed Commission, under the Treaty and
Protocol of 1907, delimited the frontier from west of the Kel Pass
until it reached that pass by strictly adhering to the line of the
watershed, serves to show a consistency of treatment by both Com-
missions of the whole frontier line of the Dangrek.

When Colonel Bernard reported that the frontiers had been de-
finitively determined he was I think stating the fact. The manner
in which the delimitation of the northern frontier was effected is
apparent. Once the point on the Mekong had been agreed to, that
frontier followed the treaty line stipulated in Article 1, namely the
crest of the Pnom Padang and the watershed of the Dangrek, until

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I21 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

it reached the point at which on the latter mountain range it met
the meridian mentioned in the article. Whatever decision or view-
point was arrived at or expressed by the two Presidents during
their reconnaissance of the Dangrek and the Pnom Padang, or at
any time, would accord with this view.

Colonel Bernard has left his testimony.

In the lecture given by him in Paris on 20 December 1907, he
described the three campaigns of delimitation from 1905 to 1907.
What he has to say he says with illuminating conciseness. These
are his words:

“Almost everywhere it was the watershed which formed the
frontier and there was room for argument only at the two extremities.”

His testimony remains to explain the meaning which should, I
am convinced, be given to the Minutes which cover the third and
last campaign of the Mixed Commission. The view he expressed
seems eminently a commonsense one.

*
* *

The review made of the Minutes and the contemporaneous docu-
ments lead I think to the following conclusions:

1. There was no adaptation of the treaty line of the watershed
on the Dangrek by the Mixed Commission to meet any local or
special problem, condition or circumstance.

2. There was no decison of delimitation which specifically dealt
with the Temple region or area.

3. There was no decision of any kind to deviate from the line of
the watershed. On the contrary it must be inferred that the Mixed
Commission decided to adhere strictly to that line.

4. There was a delimitation of the northern frontier. This delimi-
tation included the Dangrek.

5. The delimitation of the frontier line on the Dangrek was that
it should follow the treaty line of the watershed.

It follows that if the frontier line shown on Annex I has any
probative value it must find its authority within the limits of the
‘decision of the Mixed Commission. It was the decision of the Mixed
Commission which was binding upon France and Siam, not any
map which purports to reflect that decision. The map merely notes
or purports to note that decision.

If the line of frontier shown on Annex I does not accord with
that decision to the extent to which it does not, it is devoid of
probative value, unless of course it has since acquired probative
force from some other source.

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*
* *

Annex I in fact is not in conformity with the treaty line of the
watershed stipulated in Article 1 of the Treaty of 1904. Leaving
aside for the moment the comparatively small and limited area
immediately adjacent to the site of the Temple, elsewhere the fron-
tier line delineated in Annex I deviates considerably from the treaty
line of the watershed. Having regard to the expert evidence placed
before the Court by both Cambodia and Thailand, this cannot be
disputed.

This deviation was due to a serious mistake in the construction
of Annex I made in the line of the watershed close to the site of
the Temple, a mistake caused by an incorrect location of a river
known as the O’Tasem. This mistake resulted in throwing the fron-
tier line shown on Annex I completely out of alignment with the
line of the watershed in the region of the Temple. The result was
to leave the Temple wholly within the territory of Cambodia.

The experts from both sides are also in agreement that in the
small and limited area immediately adjacent to the Temple the
frontier line shown on Annex I is not today—and I am satisfied
was not in 1906-1g08—the line of the watershed. They differed only
to the extent that whereas the experts on behalf of Cambodia
showed the line of the watershed as suddenly turning north from
the cliff face on the south immediately before it reaches the western
and southernmost side of the Temple and so just barely bringing
the Temple within the Cambodian side of the watershed line, those
on behalf of Thailand showed the watershed line as continuing to
follow generally the line of the cliff face and so bringing the Temple
within the Thai side of the line.

The error in the frontier line shown in Annex I caused by the
wrong location thereon of the river O’Tasem and the effect of that
error in relation to the frontier line near the Temple shown on
Annex IJ needs further explanation.

The river O’Tasem in fact passes to the south of a mountain
known as Pnom Trap—which is situate but a few kilometres to the
west of the Temple. The course of the river as it is today is the same
as it was at the beginning of this century and for hundreds of years
before then. Annex I however places the river as running around
this mountain to the north of it.

The nature of the mistake is made clear by Professor Schermer-
horn, the Dean of the International Training Centre for Aerial
Survey at Delft, and his explanation was fully confirmed by the
observations and evidence of one of his officers, a Dr. Ackermann,
who went to the area to qualify himself to give evidence of what

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123 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

he observed on the spot.

Professor Schermerhorn in his evidence stated:

“It is obvious that the border line shown on the Annex I map
was drawn by constructing the watershed line in accordance with
the contour lines represented there. This construction was done
correctly on the basis of the given contour lines. However, due to
the mistake about the O’Tasem river, the line of the watershed is
shifted incorrectly to the north, placing the Pnom Trap mountain
completely in Cambodian territory that is to say south of the border
line as drawn in the Annex I map. This displacement of the water-
shed line to the north goes up to two kilometres at certain points.
If this mistake is rectified in the Annex I map then the watershed
constructed on the basis of the correct contour lines would be in
agreement with the I.T.C. map [that of the International Training
Centre at Delft]. In that case the watershed would run over the
Pnom Trap mountain and go from there along the southern rim of
the Phra Viharn mountain to the temple.”

This was a fundamental error in the construction of the frontier
line in Annex I. The significance of this mistake in relation to the
frontier line shown on Annex I in this region is evident having
regard to the close proximity of the Pnom Trap mountain to the
Temple and the mountain on which it stands. By placing the river
O’Tasem to the north of Pnom Trap mountain the line of the
watershed as shown on Annex I was thrown considerably north of
the correct watershed line, attributing to Cambodia territory to
which she was not entitled. The fact that from the southern edge
of the cliff face on which the Temple is situate to the watershed line
shown on Annex I immediately and directly to the north thereof is
a distance of only some two kilometres is an indication of the im-
portance of this mistake.

The line of the watershed shown on Annex I is also known to be
wrong at the Kel Pass, where it wrongly attributes certain territory
to Cambodia. Though this has no direct bearing on the Temple
area—it is far to the west of it—it has however a bearing on the
frontier line shown on Annex I, more particularly so since this mis-
take was discovered in 1908 and corrected by two survey officers
appointed by the second Mixed Commission to put down boundary
marks in the vicinity of Kel Pass. The fact is that at the Kel Pass
the accepted boundary is not, and has not since 1908, been, that
shown on Annex I.

Finally, having regard to the technical evidence presented to the
Court by both Cambodia and Thailand, I am left in no doubt that
the line of the watershed today—and in 1904—runs along the
southern rim of the Phra Viharn mountain, thus placing the Temple
on the Thai side of the line.

I2I
124 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

The frontier line placed on Annex I accordingly is not in con-
formity with the delimitation of the Dangrek by the Mixed Com-
mission. Alternatively if the fact be that there was no delimitation
by the Mixed Commission of the Dangrek the frontier line on Annex
I is not in conformity with the treaty line, in particular, in the
region of the Temple. The line shown on Annex I is not and was
not the line of the watershed.

*%
* *

In 1908, when Annex I came into existence, the law as between
France and Siam was the line of the watershed, whether based on
a decision of the Mixed Commission or—on the assumption there
was no delimitation—on the definition of the frontier in Article x
of the Treaty of 1904, or more precisely in Article I of the Protocol
to the Treaty of 1907. This line could not be altered by the unilateral
act of either France or Siam.

oe
* *

Neither France nor Siam, when the map was issued in 1908, was
aware that the frontier line shown in Annex I was not in conformity
with the line of the watershed. France certainly believed it was. It
was in the confidence of that belief and on the basis that it was
correct that she distributed copies of the maps. Siam had no reason
to believe that it was not. The mistake in Annex I caused by the
misplacement of the river O’Tasem was indeed not discovered by
Thailand or France or Cambodia until these proceedings had been
commenced. Indeed Thailand had no cause to think of any error
in the watershed line shown on Annex I until an officer of the Royal
Thai Survey Department, during the course of a survey of the
border between Thailand and Indo-China, and taking the watershed
along the Dangrek range as the dividing line, concluded that Mount
Phra Viharn lay in Thai territory.

Another survey was carried out in 1937. Again the watershed line
was taken as the frontier line. The same conclusion was reached.

Up till around 1935-1937 it would not appear there was any
particular reason why Thailand should have questioned the accuracy
of France’s map.

Both France and Siam, acting in perfect good faith, believed the
line on Annex I—as well no doubt the frontier lines shown on each
of the other ten map sheets—correctly translated the decisions of
the Mixed Commission.

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125 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

*
* *

When Annex I appeared, the frontier line delineated thereon was
not binding on either Siam or France. Unless Siam is by her conduct
precluded from alleging that it was not—which is an entirely
different question—all that may be envisaged is the creation of a
new obligation binding upon her, voluntarily entered into, a new
obligation entered into between herself and France by which each
State agreed to accept the line in Annex I as the established frontier
between them.

*
* *

It is important to review the circumstances in which the map
sheets came into existence, were printed and distributed.

Neither Annex I nor any of the ten other map sheets which went
to make the total map of the frontier regions of the 1904 Treaty
came into existence solely in response to a request of Siam. In
1904-1907 there were few reliable maps possessed by either France
or Siam of any part of these frontier regions. This finds ample
confirmation in the Minutes of the Mixed Commission, particularly
those of 17 January 1906, when Colonel Bernard expressed the view
that it would be of value to have a more complete map.

“At that moment”, he said, “there was no satisfactory map in
existence and it would be useful for the two countries to have one.
Captain Tixier and Lieutenant Sée would ... be able to extend the
map as far as the Menam on the one hand and as far as Phetchabun
and Nong-Khai on the other.”

It was just a few weeks before this that the Siamese Government
had made a request

“that the map of the whole frontier region should be executed by
French officers”.

It is quite evident that this was not a mere map to show the
frontier line but a general map of the frontier regions.

As will appear, and I think quite sufficiently, France, for her own
purposes, wanted general maps of the frontier regions and wanted
them to extend as far as possible each side of the frontier lines.
There is little doubt she intended to construct these maps during
the course of the work of the Delimitation Commission and intended
to do this before any request was made by Siam.

In November of 1907—two years after the Siamese Government
made its request—the map consisting of the eleven sheets was
completed.

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126 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

It was not until July of 1907 that Colonel Bernard, then in
France, sought the approval of the French Minister of the Colonies
for the publication of the map then being drawn up “by the
Franco-Siamese Delimitation Commission of which he was the
President” and requested the provision of funds for that purpose.
The decision to publish the maps was made by the Minister; Siam
was not consulted about it. The printing and publication of the
map did not follow, as a matter of course, from the operations of
the Mixed Commission in 1905-1907. Ultimately, funds were au-
thorized for publication of the “Bernard Commission map’’ to be
provided out of the budget of Indo-China.

An order for printing was given to a map publisher in Paris.
1,000 copies were ordered to be struck off. These were to be de-
livered to the Ministry of the Colonies by June of 1908. They were
delivered around that time.

About May of 1908, Colonel Bernard gave instructions for the
distribution of the maps when printed. Copies were to go to the
geographical service of the French Ministry of the Colonies, to the
French Ministry of Foreign Affairs, to the Siamese Government
and to members of “‘the two Commissions” and a number of copies
to different national and foreign geographical societies. Over 700
were to be delivered to the French Ministry of the Colonies for
despatch to Indo-China. 100 were to be made available to the
publisher for sale.

The copies to be delivered to the Siamese Government—50 in all
—were handed personally to the Siamese Minister in Paris without
any covering letter. Subsequently further copies were requested by
Siam. There was no written communication of any kind from the
French Government to the Siamese Government in connection with
the map. No comment from Siam was at any time sought. Indeed,
none I am satisfied was expected.

There is no evidence whatever even to suggest that Siam knew
of the contents of any of the map sheets before they were delivered
to its Minister in Paris. It is unlikely that she could have.

Siam was not consulted at any stage whilst the map sheets were
in the course of preparation, nor was she consulted on the distri-
bution to be made. The French authorities went ahead with printing,
publication and distribution of the maps solely of their own accord,
without seeking the prior views or approval of Siam.

To the extent the map sheets showed frontier lines, it is evident
that the details thereof appearing on them were based upon field
notes and topographical and survey calculations made by a number
of French officers whose names are noted on each of the sheets as
having done the work on the ground. Siam had no access whatever
to these basic materials. The documents that served for drawing up

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the maps were then in France.

Nor is there any evidence that they were ever made available to
her and I am satisfied it is wholly unlikely that they were. In any
case, there was no way in which Siam could have checked the
frontier line delineated on Annex I even if it might, in all the
circumstances, reasonably have been expected that she should have
done so, without herself undertaking an independent topographical
survey of the frontiers including the Dangrek, a task for which at
that time, as France knew, and as the Minutes of the Mixed Com-
mission and contemporaneous documents sufficiently reveal, she
was not technically equipped to undertake.

Such maps of her own as Siam had in 1908 were unco-ordinated.
The receipt of these maps drawn by French officers must no doubt
have provided an occasion in its way. They were however French
maps expressed in Roman characters. “French maps’’, stated Com-
mandant Montguers, the President of the Mixed Commission under
the Treaty of 1907, in a letter of 17 June 1908 to the Governor-
General of Indo-China, were ‘‘of no great use” to Siam. It was for
this very reason that it was agreed between France and Siam that a
Siamese map “should be drawn up by French officers assisted by
Siamese officers’.

This resulted in the establishment of the Transcription Com-
mittee.

It has been suggested on behalf of Cambodia that on this occasion
Siam had the opportunity to check the frontier line and if she did
not avail herself of it that was her own fault.

The contention completely misapprehends the function of the
Transcription Committee. It had nothing to do with the checking
of frontiers. Its sole function was to achieve a system of transcription
of names on the French maps.

Little is known about the work of the Committee. It met for the
first time on 25 March 1909 and the Minutes of its Meeting are in
the record. The problem was to transcribe names of places. The
map sheets, written as they were in Roman characters, were not
likely to be understood, so the Minutes record, by certain of the
Siamese officers who might have to use them. A system of tran-
scription from Roman characters to Siamese characters and vice
versa was the task which the Committee had to discharge, a task
further complicated by the fact that, in the basin of the Great Lake,
many villages bore both a Cambodian and Siamese name. It was
this problem and only this problem which the Transcription Com-
mittee was called upon to deal with.

Moreover, there was no real reason in any case why the Siamese
members of the Transcription Committee should think of checking
the frontier lines, not only because it was not within the task which
was allotted to them, but because both States at that time had no

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reason to think there was any mistake in the maps; both States
proceeded on the assumption they were correctly delineated.

*
* *

The circumstances in which the maps came into existence and
were distributed is of importance as providing part of the back-
ground against which the conduct of France and Siam is to be
evaluated, particularly in considering whether the adverse infer-
ences which are sought to be drawn from Thailand’s silence and
lack of protest on the line shown on Annex I bear any relation to
the realities.

Before however considering whether the conduct of the two
States created an implied conventional agreement between them
that the line shown on Annex I should be the established frontier
line between them, there are a few observations of a general charac-
ter which I think are apposite.

It is easy to fall into the error of judging the events of long ago
by present day standards, indeed sometimes by standards which
do not always have relation to real life.

In determining what inferences may or should be drawn from
Thailand’s silence and absence of protest regard must, I believe,
be had to the period of time when the events we are concerned
with took place, to the region of the world to which they related,
to the general political conditions existing in Asia at this period,
to political and other activities of Western countries in Asia at the
time and to the fact that of the two States concerned one was
Asian, the other European. It would not, I think, be just to apply
to the conduct of Siam in this period objective standards comparable
to those which reasonably might today be or might then have been
applied to highly developed European States.

There is a further general consideration of some significance.
There can be little doubt that, at least in the early part of this
century, Siam was apprehensive about the aspirations of France.

There is evidence of this.

In 1930, on the occasion of the visit of Prince Damrong to the
Temple, which has figured so prominently in this case, he was
accompanied by his daughter Princess Phun Phitsamai Diskul. In
her statement which was placed before the Court she states the
reason why her father did not ask the Thai Government to protest
about the presence at the Temple of a French officer in full military
uniform. She states:

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

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No matter how unjustified this view may have been I am satisfied
that it was not a view conjured up for the purposes of this case. It
finds confirmation elsewhere.

In March 1907, in referring to the negotiations for the Treaty of
1907 then being conducted, Colonel Bernard, in a report of 19
March to the Governor-General of Indo-China, wrote:

“There is such mistrust of us in Siam and such dread of pos-
sible military action...”

and later in the same report:

“After five hours of discussion which the nervous state of the
Siamese made painful, we concluded by reaching agreement...’’,

and on 17 June 1908, only two months before the map sheets of
which Annex I is one were handed to Siam, Commandant Mont-
guers, in his report to the Governor-General of Indo-China reveals
the same apprehension on the part of Siam. The Commandant
speaks of:

“Dispelling as far as possible the mistrust that is so deeply rooted
in them.”

This apprehension on the part of Siam as to France’s attitude
towards her is a factor which cannot be disregarded in evaluating
Siam’s conduct--her silence, her lack of protest, if protest might
otherwise have been expected of her.

*
* *

I have already given the reasons which have persuaded me to the
opinion that there was in fact a delimitation of the northern frontier
including the Dangrek. I have stated the nature of that delimitation
and why Annex I fails to draw any probative force from it. If
subsequent to its communication by France to Siam the line shown
thereon acquired any probative force that could only occur (apart
from any question of preclusion) by virtue of the two States entering
into a new conventional arrangement giving rise to new mutual
obligations between them.

The Court’s approach is quite different and marks a point of
departure between my views and those of the Court.

Judgment is based upon the conclusion that Siam, by her silence
and failure to protest against Annex I and the line indicated on it
within what is said to be a reasonable time after she received it,
recognized, adopted, acquiesced in or acknowledged it as represent-
ing what is called the ‘‘outcome”’ of the work of delimitation of the
frontier in the region of Preah Vihear and thereby conferred upon

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it a binding character. Thus, the Court finds, it, in 1908-1909 be-
came binding on Siam.

From the subsequent failure (on the part of Siam) to protest, the
Court draws inferences to support its conclusion that Siam had in
1908-1909 recognized and acquiesced in Annex I with the character
the Court has assigned to it.

The Judgment speaks of the contingency of a departure from the
criterion of the watershed line stipulated in Article 1 of the Treaty.
It however dismisses as irrelevant the question whether a departure
may have occurred since, whatever was the nature of any inherent
power of adaptation possessed by the Mixed Commission, it was it
states certainly within the power of Siam in 1908-1909 to adopt
any departures.

Either France or Siam was of course entitled to adopt or fail to
adopt anv attitude towards Annex I as it thought fit. The crucial
question which, in my opinion, calls for an answer however is not
whether Siam recognized, acknowledged, adopted or acquiesced in
Annex I whatever the character assigned to that document may
be; but whether the conduct of France and Siam ever gave rise to
an implied conventional arrangement between the two States under
which they mutually agreed to be bound by the frontier line shown
on Annex I, whether it was or was not in conformity with the cri-
terion of the watershed stipulated in the Treaty of 1904. This
question, in my opinion, the Court leaves unanswered.

It is my view that unless the conduct of Thailand since 1908
has resulted in her being precluded from denying that the line on
Annex I is the frontier line—a quite separate question which will
be later considered—or unless there can be established a new and
fresh conventional arrangement between the two States, any recog-
nition by Siam of Annex I and of the line shown thereon cannot
be conclusive against Thailand.

A State may of course recognize—or acquiesce in—any fact or
situation either of law or fact and its intention to do so may be
evidenced expressly or by implication. The recognition may become
the source of a legal right or obligation to the extent to which it
provides an essential element in the establishment of a legal right
or obligation, as for example in preclusion or prescription. It may
provide evidence of a fact or a state of facts, the probative value
of which depends upon all the surrounding circumstances. It may
afford aid in the interpretation of a document or conduct.

The act of recognition is not however a unilateral juridical act
which of its own force precludes a State from thereafter challenging
the fact or situation recognized. It may, depending upon the cir-
cumstances, provide strong, perhaps overwhelming, evidence of the
truth of the fact or situation recognized; it may provide only
evidence which is destroyed or modified by other evidence. Pre-

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clusion—or, to use its Anglo-Saxon equivalent, estoppel—may how-
ever only occur where all the elements which constitute the principle
of preclusion can be shown to exist.

There is a close affinity between prescription, preclusion, recog-
nition, acquiescence and absence of protest. The principle of pre-
clusion is however, in my view, quite distinct from the concept of
recognition (or acquiescence), though the latter may, as any conduct
may, go to establish either prescription or preclusion.

To accord to the concept of recognition by a State of a fact or
situation, without more, the legal consequence of a preclusion not only
finds, in my opinion, despite the views of certain writers, no authority
as a principle of international law under Article 38 of the Statute of
the Court, but provides an invitation to apply to the determination of
a case in which recognition of a fact.or of a situation is relied upon,
considerations which are scarcely distinguishable from consider-
ations ex aequo et bono.

The concepts: of recognition and acquiescence are important
elements of international law. They are not likely to add to their
usefulness if pushed beyond their proper content.

In the present case any recognition by Siam of Annex I and the
line of frontier shown thereon, or any acquiescence by Siam therein,
is in my view of evidentiary value only.

Recognition by Siam of Annex I and the line of frontier thereon
—if any were made—is of course evidence of an admission by Siam
(and Thailand), which may be read against her to establish that
there was in fact a decision of delimitation of the frontier on the
Dangrek. It might perhaps be construed as an admission that that
decision was correctly represented by the frontier line shown on
Annex I. |

Were any such admission the only evidence in this case it could
well be conclusive. But it is not the only evidence. There is a great
deal more. The task of the Court is to ascertain the true facts. It
may in doing so be influenced by an admission established by the
conduct of Siam. It cannot however be controlled by it if other
evidence negatives or modifies or is inconsistent with the admission
which a recognition may establish. The recognition is not conclusive.

In short, the evidentiary value of the recognition or acquiescence
must be weighed against all other relevant evidence disclosed in the
record.

When regard is had to other relevant evidence in the record, it
will be seen that such admissions as may be spelt out of the conduct
of Siam by the Court have little if any evidentiary value in the
determination of this case.

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It is established that there never was any decision of the Mixed
Commission agreeing to any line on any map or sketch. It is es-
tablished that there never was any decision of delimitation by
virtue of which the Mixed Commission, pursuant to an inherent
power of adaptation of the correct line of the watershed, placed the
Temple region for some special local or any other reason within
Cambodian territory. It is established that there never was a
decision to depart from the Treaty line of the watershed but, on
the contrary, the evidence is that the Mixed Commission decided
that that line should be adhered to. It is established that if there
were a delimitation of the Dangrek it could only have been one to
the effect that the frontier line should follow the line of the water-
shed, and if there were no decision of delimitation the frontier line
remained the line of the watershed pursuant to the Treaty of 1904.
It is established that Annex I does not follow the line of the water-
shed but, on the contrary, seriously departs from it at the critical
area of the Temple region, and it will be established that the line
on Annex I purports to show the line of the watershed and no
other line.

*
* *

It seems necessary to repeat that the line on Annex I had not
been before the Mixed Commission when it came to an end. In
fact, it could never have existed at all until after the Mixed Com-
mission’s last meeting.

The instructions of survey officers Captains Oum and Kerler are
set forth in the Minutes of the Mixed Commission of 7 SeptemLer
1906. Their task was to carrv out a survey and nothing else.

It was contended on behalf of Cambodia that the task of the
topographical officers—though they were in no way authorized
themselves to delimit the frontier—included that of marking on
the map the frontier line. Sometimes, it was suggested, this was
done pursuant to a prior decision of the Mixed Commission; at
other times the Mixed Commission, it was said, determined the line
only after the map had been drawn up.

Even if the evidence gave any support to this contention it is
clear that neither of these eventualities occurred. Captain Oum left
to survey the Dangrek before the Mixed Commission had even
started on its reconnaissance of the northern frontier, and the
Mixed Commission held its final meeting over a month before he or
Captain Kerler, who was surveying the region from the Great Lake
to the Dangrek, reached Bangkok from their field operations.

Annex I never became part of the work of delimitation of the
Mixed Commission and never accordingly could be said to have
become an integral part of the treaty settlement.

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133 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

The conclusion of the Court based on recognition is, in my
opinion, inconsistent with the established facts.

*
* *

The conclusion of the Court that Annex I, as a consequence of
Siam’s recognition of it as representing the outcome of the work of
delimitation is that it caused the map to enter the treaty settlement
and thus to become an integral part of it, presents a difficulty which,
in my view, goes to the heart of this case.

It is not necessary for me to express any opinion on whether, or
to what extent, this recognition could cause the map to enter the
treaty settlement. The point to which I desire to direct attention
is that it follows from the Court’s conclusion that Annex I is to be
treated as if there had been a decision of the Mixed Commission
that the frontier on the Dangrek should be delimited in accordance
with the line shown thereon.

It would then fall for determination whether it was a delimitation
established on the basis of the criterion laid down in Article 1 of
the Treaty of 1904 which was that the frontier line should follow
the line of the watershed. If the delimitation were not established
on that basis, the line on Annex I could not, in my opinion, have
any probative value; it could have no binding force upon either
Siam or France.

The Court seeks to resolve the difficulty on the basis, not of a
new conventional agreement—since none is shown or could be
shown to exist—but on the basis of treaty interpretation.

The line shown on Annex I is beyond doubt not the line of the
watershed, in particular it is not that line in the critical vicinity of
the Temple. On the basis that Annex I is, or represents, a delimi-
tation of the Dangrek by the Mixed Commission it is evident that
the line in Annex Lis not established in accordance with the criterion
laid down in the Treaty.

The Court however does not see it this way. Basing its reasoning
on a proposition that the two States, despite the clear provisions
of Article 1, did not attach any special importance to the line of
the watershed but were concerned with. what is described as the
overriding importance of adhering to a map line in the interests of
finality—a conflict between the line in Annex I and Article 1 of the
Treaty of 1904 is resolved as a matter of treaty interpretation in
favour of the line on the map sheet.

I do not agree either with the proposition on which the Court
bases its reasoning or with its reasoning. I cannot agree that a
derogation from what is provided in the Treaty, namely that the
frontier should follow the line of the watershed, can be disposed of

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in this manner by treating the map, the line on which was to
conform to the Treaty, as in law overriding it.

This, in my view, is not treaty interpretation. It amounts, in my
opinion, to redrafting the Treaty of 1904 in accordance with a
presumed intention of the two States, an intention indeed which is
not to be found within the terms of the Treaty itself nor, in my
view, elsewhere in the evidence; a presumed intention which is
moreover quite inconsistent with the plain terms, not only of
Article 1 of the Treaty, but as well with Article 3 thereof which
provided that the work of the Mixed Commission had as its object
“the frontier determined by Article 1’.

Moreover, it hardly seems possible even as a matter of treaty
interpretation to pronounce in favour of the line of Annex I in the
absence of a determination of the extent to which Annex I does or
does not in fact conform to the stipulations contained in Article 1
of the Treaty itself.

Finally, if the record establishes, as I believe it does, that the
Dangrek was in fact delimited by the Mixed Commission and that
the decision was that the frontier should follow the line of the
watershed there would be a conflict between the line on Annex I
and the decision of the Mixed Commission. This conflict could not
be resolved by the method of treaty interpretation to which the
Court has had resort. The decision of the Mixed Commission that
the frontier line should be the line of the watershed destroys the
foundation on which the Court’s reasoning is based. In any case,
there could be no doubt that the decision of the Mixed Commission,
that the frontier line was to follow the line of the watershed, must
prevail over any map line which purports but fails to reflect that
decision.

*
* *

There are further difficulties in the way of the thesis which the
Judgment expounds. Annex I and the ten map sheets accompanying
it were delivered to Thailand and received by the latter at the same
time and in the same circumstances.

If Annex I became part of the treaty settlement of 1904 by
virtue of the recognition found by the Court, so did they all. Yet,
between the time when the Mixed Commission under the 1904
Treaty held its last meeting and ceased to function, and the end
of March 1907, France had entered into the Treaty and Protocol
of 1907. |

Six of the eleven maps related to the frontier region between
Siam and Cambodia. The frontier line on three of them covering
the regions between the Great Lake and the sea to the south no
longer existed as frontier lines. Not only did they not exist, but the
whole region covered by these map sheets—issued in 1908—weré

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no longer in Thai territory. There seems little purpose in Siam
having adopted or recognized them.

Of the three remaining map sheets, namely those which covered
the northern frontier, two covered the region of the Pnom Padang;
one of which also covered part of that mountain range and a section
of the eastern part of the Dangrek. It would not I think, as a
matter of treaty interpretation, be possible to reconcile the frontier
line shown on these two maps, in so far as they relate to the region
of the Pnom Padang, with the frontier line stipulated in the Treaty
of 1907.

Under this Treaty, the line of the frontier on that range of moun-
tains as far as the Mekong no longer followed the crest, as the de-
cision of the Mixed Commission of. 18 January indicates it should
do in accordance with the provisions of the 1904 Treaty, but the
line of the watershed. Article I of the Protocol of 1907 was the law
which governed the two States.

This is also the position with regard to the Dangrek. After the
Mixed Commission under the 1904 Treaty had ceased to function,
Article I of the Protocol of the Treaty of 1907 stipulated in clear and
unambiguous terms that the frontier line on the Dangrek should
be that of the watershed. The line on Annex I cannot as a matter
of treaty interpretation be reconciled with the 1907 Treaty. The
Treaty must prevail.

Unless therefore France and Siam thereafter entered into a new
conventional arrangement that the line on Annex I was to become
binding upon them irrespective of whether it did or did not answer to
the criterion of the line of the watershed, it is the watershed line
of the 1907 Treaty on the Dangrek which must prevail.

That the law governing the two States subsequent to 1907 was
the treaty line defined in Article I of the Protocol of 1907 was
acknowledged by France in her diplomatic note of 1949 to Siam, in
which she said in specific and unmistakable terms that the fron-
tier line between herself and Siam was that stated in the 1907
Protocol, namely the watershed which continued to be the frontier
line between the two States. This is the same position which Cam-
bodia took up in its own diplomatic note of 1954.

*
* *

I turn now to the question whether the evidence establishes any
consensual agreement between France and Siam in relation to the
frontier line shown on Annex I.

An agreement between the two States could have taken a number
of forms. Neither was subject to the limitations of authority
which the Treaty of 1904 imposed upon the Mixed Commission.
Each State had plenary powers. Either could, had its mind been
directed to the matter, have sought modification of the line shown

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136 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

on Annex I or refused to agree to it. The two States could have
agreed that, notwithstanding the terms of any treaty between them,
having regard to certain political or other considerations, the line
should be altered, which was precisely what the two Governments
in 1905 did agree to do outside the terms of the Treaty of 1904
in respect of the region of Kratt on the sea south of the Great Lake.
The two States could have agreed to accept the line on Annex I
as representing the line of the watershed whether it did or did not
conform with that line. They could have agreed that the line on
Annex I should be deemed to have been a delimitation by the
Mixed Commission under the 1904 Treaty whether there had or
had not been such a delimitation. They could have expressed their
agreement in the form of a new convention—they could, but in my
view most improbably, have left their agreement to be evidenced
by their conduct.

The matter was at large.

Whatever agreement were reached, it would have involved a new
or fresh obligation undertaken by each State in relation to the other.
Whether in the events which happened any such agreement was
made—and if so what was the nature and content of it—depends
upon whether any may be implied from the evidence.

The Judgment directs its consideration almost exclusively to an
examination and criticism of Thailand’s conduct of silence and non-
protest. There is however another side of the picture.

+
* *

Criticism may indeed be directed against Thailand and inferences
adverse to her drawn from the fact that on a number of occasions
over the years since 1908-1909 she remained silent on the map sheets.
The fact however is that France herself innocently, but none the
less to a major extent, directly contributed to the very conduct of
Thailand that Cambodia has sought to rely upon, and the Court
thinks is of such significance. For it was the act of France in pre-
senting the map sheet Annex I which purported to show a frontier
line drawn correctly to represent the line of the watershed—
whether based upon a decision of the Mixed Commission or upon
the Treaty line—that induced Thailand to believe that the line
shown on Annex I had been correctly drawn.

My own approach to the facts, as well as to the legal issues
involved, differs from that of the Court. I take another view of the
facts and my enquiry is directed to a different end, namely to
determining whether there was a consensual arrangement between
France and Siam that the line on Annex I was to be the established
frontier between the two States.

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* * *

A few general observations should first be made.

In the first place, the concentration of attention on the small
area of the Temple as shown at Annex I tends to shut out of view
or obscure other and more important facts. It is of course true
that although the Court has been requested by Cambodia to declare
that the line shown on Annex I is the line of the frontier in the
region covered by that map, it is only called upon to pronounce on
the claim as stated in the Application, namely whether sover-
eignty over the Temple is vested in Cambodia. But this it cannot
do except by first arriving at a conclusion one way or the other on
whether the frontier line on Annex I as a line which legally is binding
on the two States.

This being the essential step in reaching a decision, little purpose,

it seems to me, is served by stressing, indeed I think overstressing,
the fact that if you look at the map sheet Annex I it will be seen
the Temple lies on the Cambodian side of the frontier line. That is
evident. It becomes perhaps more insistently pressed upon the eye
the more one looks at the comparatively small part of a large map
sheet. .
It is easy to fall into the error of thinking that the Temple
and who was to obtain sovereignty over the Temple was the princi-
pal or the prime concern of the two States in 1908-1909 and that,
when Thailand received the maps, almost the first thing which she
might be expected to do would be to see whether sovereignty over
the Temple had been accorded to her. All this, I think, bears little
relation to the realities.

Quite apart from the fact that the Temple was not of any great
significance to either State in 1908-1g09—it never found a mention
in any of the voluminous correspondence of Colonel Bernard—
what the two States were concerned with under the 1904 Treaty
was the delimitation of frontiers of considerable length. In so far as
one part of the frontier was concerned, namely the Dangrek, the
line was to be the line of the watershed. If that line placed the Temple
or any other part of the territory between the two States one side
or the other, that was the result of the Treaty and could hardly be
the subject of protest.

France, in whose technical capacity accurately to construct the
* map of the frontier regions Siam reposed confidence, prepared the
map sheets. That Siam did so repose confidence in France’s techni-
cal capacity to do this is beyond dispute. France, by preparing the
map sheet Annex I, represented in my view, when it was delivered
by her to Siam, that it was correctly drawn and that the frontier
line shown thereon was in accordance with the decision of the Mixed
Commission or, if there was no such decision, was in accordance with
the Treaty line. In particular, she unequivocally represented that

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the frontier line so depicted was the true line of the watershed.

In these circumstances alone, on any approach to this case I
would find little justification in demanding from Thailand that she
should, within some time regarded as reasonable after she received
Annex I, have herself ascertained whether the line represented
by France as correctly showing the line of the watershed was ac-
curate or not and that, having failed to protest, it should be con-
cluded against her that she acknowledged the line was correct
whether she in fact knew it was or not—and should be held bound
by it.

A second observation of a general character throws light upon
the circumstances in which the Parties were placed at the relevant
period of time.

Prior to 1904 Thailand exercised sovereignty over the whole
area of the Dangrek right to the cliff face. Such acts of administra-
tion as were, prior to 1904, effected by her in the area were, I am
satisfied, continued on thereafter. Certainly, until 1949, when the
present dispute about the Temple first asserted itself, these acts
of administration were of a sporadic character. They were, however,
less sporadic and covered a larger part of governmental activity
than any acts exercised by France. Although much has been heard
in this case about the importance of final and settled frontiers,
apart from the one incident of Prince Damrong’s visit to the Temple,
neither State appears to have been aware of what the other was
doing. It is significant that the Governor of the Cambodian pro-
vince adjacent to the Temple had not the slightest idea where the
frontier lines were. All he appeared to know was that the Temple
was, so he claimed, within Cambodian territory.

The reason is not hard to find. The Temple ruins, which were
the subject of a number of scattered visits by archaeologists, were
allowed to submit to the years and the elements. The region to
the immediate north of the escarpment dominating the Cambodian
plains was forbidding and remained so. A few people apparently
from time to time eked out an existence there. The whole district
along the escarpment on the Dangrek was covered with sparse forest
and stunted trees and was, in Colonel Bernard’s view, ‘‘despair-
ingly monotonous’. After the summer rains it swarmed with game.
In the dry season “there could not be”, he says, “a more desolate
landscape’. The rivers were dry and “water was only to be found
in loathsome pools where all the wild animals come to drink”.

It was, in short, territory, certainly not in the early part of this
century, of any great consequence to France or Thailand. The
picture of France or Thailand at this period of time being specially

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interested in having an agreed line on a map to indicate where the
frontier was—irrespective of whether it was or was not the line
of the watershed—or in knowing which side of that line the Temple
fell does not strike me as a real one. It was indeed, in my opinion,
only much later that the limited region near the Temple, for ar-
chaeological and military reasons, acquired any real significance
on the political level for either State.

*
* *

The issue to be decided is whether the record establishes an
agreement between France and Siam that Annex I and the frontier
line indicated thereon would be accorded by each of them conventio-
nal force. The proper enquiry under this issue is whether in 1908
or thereabouts the conduct of the two States establishes a common
intention to contract mutual obligations and rights in relation to
the frontier line shown on that map sheet and, if so, what was the
nature of the agreement to which their common intention gave
expression.

The right of entering into an international engagement is an
attribute of State sovereignty. That a State has entered into such
an engagement may not lightly be inferred from conduct.

Conduct may, however, be such that it may be inferred that two
or more States have entered into an international engagement.
The intention of a State to enter into such an engagement may
however only be inferred from facts which conclusively establish it.

The evidence in this case falls far short of such a test.

In the normal course of events, had there been any intention on
the part of either of the two States to enter into an international
engagement in relation to the line on Annex I, it might be expected
that some trace of that intention would have been left, if not in
written form then at least by some unequivocal overt act on its
part indicating that intention. There is none. It can scarcely be
contended that the act of France in delivering to Siam copies of a
map which were at the same time delivered by her to third parties
evidenced any intention on her part to enter into an international
engagement. There is nought save silence on her part; silence
unbroken for forty years. When, in 1949, at the time she despatched
to Thailand a diplomatic note alleging infringement of her terri-
torial sovereignty in the region of the Temple, she broke the silence,
it was not to suggest that any agreement had arisen in 1908-1909,
nor indeed to suggest that Thailand had by her conduct in those
years or since recognized the line in Annex I as being the frontier line.
It was to say something which, in my view, is inconsistent with
either suggestion.

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Nor has there been left any trace of any intention on Thailand’s
part to enter into an international engagement. Here too there is
silence over the decades.

The reason why no trace of any intention on the part of either
State to enter into any international engagement is to be found
is, I think, evident enough. There just was no such intention.

France prepared the map sheets primarily, as I think was the
case, for her own purposes, and partly in response to the request
of Siam made in November 1905 that a map of the frontier regions
should be drawn up by French officers.

The printing of the map sheets did not follow as a matter of
course on any work of the Mixed Commission. The map sheets
were indeed not directly the necessary consequence or the outcome
of the work of delimitation of the Treaty of 1904. Long after the
Mixed Commission had ceased to function, authority to print
them had, as has been noted, first to be obtained from the French
Minister for the Colonies. Moreover, the map sheets, as even a
casual look at them reveals, though based on work done by officers
attached to the French Commission during the occasion of the
work of the Mixed Commission, was not the work of the Mixed
Commission. The major part of the detail appearing thereon is
wholly unconnected with any work of delimitation.

It 1s abundantly evident from the report of his mission by
Colonel Bernard to the French Minister of the Colonies of 14 April
1908, in which he reviewed the studies the French Commission
“had to carry out’’, that the French Delimitation Commission was,
during the course of the operations of the Mixed Commissicn,
engaged in work which went far beyond the work of delimiting
frontiers. The work of the French Commission included ‘ethno-
graphical research and cartographical work’’. Attached to his
report, in addition to all the Minutes of the Mixed Commission,
were a number of reports by different officers attached to his Mission
including one, for example, on the highway from Bangkok to
Xieng Khong in the far north of Siam. The description of the
reports suggests that the work of the French Commission, reflected
in large measure in the various map sheets, had been by no
means limited to work of delimitation called for by the Treaty of

1904.

It appears reasonably evident that whether Siam had or had not
requested that French officers should execute maps of the frontier
region, or however their request had originated, that the French
Commission intended to prepare these maps in any Case.

Moreover, the French Minister of the Colonies, who authorised
the printing and publication of the maps, or his departmental
officers, were acquainted with the contents of the Minutes of the
Mixed Commission and accordingly knew from them and the many

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I41 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

reports of Colonel Bernard precisely what decisions had been
taken by that Commission.

France knew what the record disclosed and they rested content
with the record, confident in the reliability of their own topographers
and cartographers.

If, however, they believed that some confirmation was necessary,
to establish a decision of the Mixed Commission which was not
recorded or not sufficiently recorded in the Minutes, it might
reasonably be expected they would have specifically raised the
matter and not remained silent about it. On the other hand, if
they knew that there was no decision of the Mixed Commission
delimiting the Dangrek they would certainly know there was no
decision to depart from the line of the watershed and that accord-
ingly the frontier was governed by the line of the watershed sti-
pulated in the Treaty and Protocol of 1907. Whichever way the
matter is viewed they knew it was the line of the watershed. The
frontier line shown on Annex I is not consistent with any other
hypothesis.

The examination of Annex I serves, in my view, to establish this.
It shows the contours of the terrain on the Dangrek. It is, I think,
evident, even to one not expert in the reading of contour lines,
that the frontier line shown on Annex I over its whole length is
directly connected with and based on these lines. It would appear
probable on the face of Annex I that the frontier line was drawn
so as to follow the line of the watershed as indicated by the various
contours of the terrain shown thereon.

That this was in fact so is borne out, certainly in the critical
region surrounding the Temple, by the evidence of Professor
Schermerhorn who stated that the frontier line shown on Annex I
was drawn up by constructing the watershed line in accordance
with the contour lines shown. If the contour lines were correct
the line of the watershed would have been correct. As, however,
has been shown, the contour lines were not correct.

France accordingly knew Annex I represented the line of the
watershed. If it was correctly drawn, as she was quite certain was
so, there was no need for any further agreement between herself
and Siam.

Moreover France, I am satisfied, was aware that Siam did not
have the technological capacity to carry out a check survey. She cer-
tainly knew Siam had no means of knowing whether the frontier
line on Annex I was correct or not and she knew that Siam was
relying on her. It seems impossible in those circumstances to imagine
she could ever have had any contractual intention in sending the
map sheet to Siam or that she should think that Siam had any such
intention.

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Furthermore, France knew when she delivered the map to Siam
that certain of the map sheets were of no possible practical value
to Siam as a consequence of the Treaty of 1907.

What applies to Annex I must apply also to all the map sheets.
There is no room for a contract being implied in relation only to
Annex I. If any conventional agreement is to be implied it must be
one which relates to all the map sheets which were the constituents
of the one map. The fact that certain of the map sheets had no
longer any frontier significance goes to confirm that France never
had the intention of creating any conventional arrangement between
herself and Siam.

Finally, when in 1949 France protested by diplomatic note against
the stationing by Thailand of guards at the Temple, not a word is
said about any conventional arrangement having been made be-
tween herself and Siam. In her diplomatic note of 9 May of that
year France set out with particularity the grounds on which it
contended that sovereignty in the Temple was vested in her.

The note disclosed that France relied upon the Protocol annexed
to the Treaty of 23 March 1907. It stated that the frontier was, and
continued to be, that defined by Article I of the Protocol, namely
the line of the watershed. It claimed that Annex I showed in detail
the frontier line so defined and that the map was drawn up in
1904-1905 (stc) under the direction of Colonel Bernard and that the
line shown on that map was the line referred to in Article I of the
Protocol as “in conformity with the line adopted by the preceding
Commission of Delimitation on 18th January, 1007”. This is the same
ground on which Cambodia put forward her claim to sovereignty
in the diplomatic note in 1954. It is the same ground which was
put forward by Cambodia in her Application and Memorial.

At no time, until after these proceedings commenced, was there
any suggestion of any implied agreement arising out of conduct.
France’s claim for sovereignty, and later Cambodia’s, rested solely
on express agreement.

No implied agreement has been made out.

*
* *

I come now to the question whether Thailand as a result of her
conduct in 1908 and since is precluded from contesting that the line
shown on the frontier in Annex I is the established frontier.

Ok
* *
Whether Thailand is precluded from contesting the frontier line
shown on Annex I cannot be answered until the essential legal
elements which constitute preclusion are ascertained.

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143 JUDGM. 15 VI 62 (DISS. OP. SIR PERCY SPENDER)

22 66 22 6€

The words “adoption”, “acceptance’’, “acquiescence” and “recog-
nition” which, in the course of the proceedings have been so often
used, are apt I think to cloud legal principles unless it is quite clear
in what sense they are being used.

These words are principally, concerned with factual situations to
which certain general principles of international law may apply and
in so doing operate so as to affect legal rights and obligations as
between States.

Moreover, phrases such as “a party may not blow hot and cold”
or “‘allegans contraria non est audiendus’”’ and others to the same
effect do not, in my view, express general principles of international
law. They are but a convenient and compendious way in which, in
a general sense, the reasons which underlie certain legal principles
and rules may be described.

Any situation may, as has been stated, be the subject of an act
of recognition or may be acquiesced in. A situation so recognized
or accepted may, and usually does, acquire evidential value and in
certain circumstances may attract or produce legal consequences
creating, affecting, or changing a legal relationship between States.

There is however, in my view, no foundation in international law
for the proposition that an act of recognition by a State of or
acquiescence by a state in a situation of fact or law is a unilateral
juridical act which, operating of its own force, has the legal conse-
quence of precluding a party giving or making it from thereafter
challenging the situation which is the subject of recognition or
acquiescence.

The cases of Legal Status of Eastern Greenland (Series A/B No. 53),
Status of South West Africa (I.C.J. 1950) and Arbitral Award by the
King of Spain (I.C.J. 1960) do not support, in my view, this propo-
sition. To claim that they do is to read into their facts law which
is not there.

*x
* *

The principle of preclusion is a beneficient and powerful instru-
ment of substantive international law. Based as it is upon the
necessity for good faith between States in their relations one with
another, it is not to be hedged in by artificial rules. It should not
however be permitted to become so indefinite as to acquire the
somewhat formless content of a maxim. And since the principle,
when it is applicable to any given set of facts, substitutes relative
truth for the judicial search for the truth, it should be applied with
caution.

In my opinion the principle operates to prevent a State contesting
before the Court a situation contrary to a clear and unequivocal
representation previously made by it to another State, either ex-

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pressly or impliedly, on which representation the other State was,
in the circumstances, entitled to rely and in fact did rely, and as a
result that other State has been prejudiced or the State making it
has secured some benefit or advantage for itself.

Unless the elements so stated can, in any particular case, be
shown to exist, the principle has no application.

The Arbitral Award of the King of Spain (I.C.J. 1960) neither
extended nor cut down this principle. It applied it. All the consti-
tuent elements were, in my view, established in that case.

Whether the principle applies to the present case is an issue of
fact and law.

*
* *

The question of preclusion was not raised by Cambodia in her
Application, but during the course of the oral proceedings. It oc-
cupied a distinctly subordinate place in the presentation of Cam-
bodia’s claim.

If a State claims it has been prejudiced by the conduct of another
State in circumstances which prevent that other State from legally
contesting what otherwise is an important fact or situation and
fails to raise the issue of preclusion in any way until very late in
the day, that is a circumstance which cannot be disregarded. It
bears upon whether there is any substance in the claim.

*
* *

I greatly doubt whether any of the elements of preclusion have
been established by Cambodia. Even were it established that Thai-
land’s conduct did amount to some clear and unequivocal represen-
tation, and that France relied upon it and was entitled so to do,
I do not think there is any evidence that France—or Cambodia—
suffered any prejudice. Certainly no piece of evidence so far as I
can recall was ever presented which could establish that either
State did.

Nor is it apparent what benefit Thailand can be said to have
obtained as a result of her absence of protest.

I do not find it, however, necessary to examine these matters.

In my opinion the evidence quite fails to establish any clear and
unequivocal representation on the part of Thailand.

Moreover, I am satisfied that France never acted upon the faith
of any representation which may be inferred from Thailand’s
conduct.

- It is not sufficient to assert that she did, the evidence must
establish it. The burden of proof lies upon Cambodia and, in my
view, she has failed to discharge the burden.

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France never in any manner, over a period of 50 years, suggested
that she had relied upon any conduct on Siam’s part. Indeed, her
diplomatic note of g May 1949 before referred to, gives not the
slightest suggestion that she ever had.

The explanation is, I think, evident. France did not rely upon
any conduct of Thailand in relation to Annex I. On the contrary,
she relied solely upon the accuracy of the surveys and calculations
of her own topographical officers and the map sheets drawn up by
her own cartographers based upon those surveys and calculations.
She acted not on the faith of Thailand’s silence or other conduct,
but upon the faith she reposed in the competence of the officers who
established Annex I. She was quite confident that the question of
the frontier between herself and Siam was governed by Article I
of the Protocol of 1907 and that Annex I was correct. Moreover,
she mistakenly believed, as at all times did Cambodia, that the
reference in that Article to “the line (tvacé) adopted by the preceding
Commission of Delimitation on 18th January, 1907” was a reference
to Annex I and the line depicted thereon and thus was formally
confirmed by that Protocol.

It was indeed not Thailand’s reaction or attitude to the map
sheets which determined France’s course of action. Onthecontrary,
as France knew, it was Siam who relied upon her in the drawing
up of maps. In a letter of March 1909 the French Minister in Siam,
reporting to the French Foreign Minister on the work of the Tran-
scription Committee, reveals. clearly enough that it was the policy
of France that Siam should continue to rely upon her in matters
touching the drawing up of maps. French interest in the Tran-
scription Committee was not limited to its work. There was, the
French Minister writes, also ‘‘an ultimate aim... entertained from
the outset”. The objective was ‘‘to persuade the Siamese to embark
on a course that is likely to lead them to the goal we have in view,
that is to say, to cause them, at a later stage, to appeal imvariably

39

for our help for the purpose of drawing up a general map of Siam...”’.

For my part, I am satisfied that France, except in terms of her
general political policy and of attracting Siam to a closer dependence
upon her, had not the slightest interest in how Siam reacted to
Annex I or any other of the map sheets; there was no reaction she
could have expected. She knew the extent to which Siam was
dependent upon her in the construction of the maps and she wanted
that sense of dependence to remain. I am quite unimpressed by the
contention put forward late in the day—a contention which there
is not one piece of direct evidence to support—that France relied
upon Siam’s acceptance of Annex I. France produced the map
sheets, including Annex I, was satisfied they were correctly drawn
up and required no confirmation—and remained at all times satis-

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fied they were correct. On that basis, and that basis alone, France
conducted herself thenceforth.

In my opinion, Thailand is not precluded from alleging that the
line on Annex I is not the frontier line.

*
* *

I regret exceedingly that I have found it necessary to express my
views at such length. This case, important though it is for the two
States directly concerned, has however a significance which extends
beyond the confines of the present litigation.

Whether the Mixed Commission did or did not delimit the Dang-
rek, the truth, in my opinion, is that the frontier line on that
mountain range is today the line of the watershed.

The Court however has upheld a frontier line which is not the
line of the watershed, one which in the critical area of the Temple
is an entirely different one.

This finds its justification in the application of the concepts of
Tecognition or acquiescence.

With profound respect for the Court, I am obliged to say that in
my judgment, as a result of a misapplication of these concepts and
an. inadmissible extension of them, territory, the sovereignty in
which, both by treaty and by the decision of the body appointed
under treaty to determine the frontier line, is Thailand’s, now
becomes vested in Cambodia.

(Signed) Percy SPENDER.

144