4. Counter-Memorial of the Royal Government of Thailand
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4. COUNTER-MEMORIAL OF THE ROYAL GOVERNMENT OF THAILAND I. The present dispute concerns the sovereignty over a portion of land on which the temple of Phra Viharn stands. ("PhraViharn", which is the Thai spelling of the name, is used throughout this pleading. "Preah Vihear" is the Cambodian spelling.) 2. According to the Application (par. I), ThaiIand has, since 1949, persisted in the occupation of a portion of Cambodian territory. This accusation is quite unjustified. As will be abundantly demon- strated in the follo~vingpages, the territory in question was Siamese before the Treaty of 1904,was Ieft to Siam by the Treaty and has continued to be considered and treated as such by Thailand without any protest on the part of France or Cambodia until 1949. 3. The Government of Cambodia alleges that its "right can be established from three points of rieivJ' (Application, par. 2). The first of these is said to be "the terms of the international conventions delimiting the frontier between Cambodia and Thailand". More particuIarly, Cambodia has stated in its Application (par. 4, p. 7) that a Treaty of 13th February, 1904 ". is fundamental for the purposes of the settlement of the present dispute". The Government of Thailand agrees that this Treaty is fundamental. It is therefore common ground between the parties that the basic issue before the Court is the appIication or interpretation of that Treaty. It defines the boundary in the area of the temple as the watershed in the Dangrek mountains. The true effect of the Treaty, as will be demonstratcd later, is to put the temple on the Thai side of the frontier. Cambodia's second contention is that "Cambodia has never abandoned its sovereignty over the portion of territory in question and has altvays continued, by virtue of the title established by the treaties, to exercise territorial powers effectively therein". Thirdly, Cambodia alleges that "Thailand has not performed in the said portion of territory any acts of sovereignty of such a nature as to displace the Cambodian sovereignty". The evidence adduced in support of the second contention is exiguous in the extreme, Against the final negative contention, the Government of Thailand will show that it has in fact exercised vanous acts of sovereignty over Phra Viharn for many years without any interference or protest. Clearly, however, if the position of Thailand on the first contention iç proved to be correct, the second and third contentions have to be revised. It would be for Cambodia to prove that Thailand had abandoned its sovereignty over the portion of territory in quèstion, or that Cambodia had performed in that portion of territory acts of sovereignty of such a nature as to displace the Thai sovereignty. The Government of Thailand is confident that Cambodia would be unable to establish cither of these contentions, even if they were put forward as, at present, ' they are not. 4. However, before discussion of these arguments is undertaken it appears essential to explain the historical background of the problem before the Court. The Court çhould be aware of the re- lationship between Siam and France during the criticaI years from 1860 to 1914,and even later. Incidentaliy, the assertion has also to be met that the temple belongs "to the religious, artistic and historic heritage of Cambodia" (Mernorial, par. 6). CHAPTER 1 HISTORICAL BACKGROUND j. About 1860 the French established themselves in Cochin China and began trying to extend their influence into Carnbodia. Cambodia at that timc was a tributary state of Siam, but internaIIy was in a condition of serious disturbance. As a result of these disturbances, two treaties were concluded in the name of Cambodia in 1863. By one, made between the Ernperor of the French and the Viceroy of Carnbodia on the 11th August, 1863, Cambodia submitted to the protection of France. By the other, made between the King of Siam and the same Viceroy of Carnbodia, together with twelve Cambodian nobles, on the 1st December, 1863, Cambodia acknowl- edged that she was a tributary state of Siam. There is evidence that the purpose of this treaty was to obtain the protection of Siam against France (Annex No. 1). However, the French efforts to secure control of Cambodia continued, and on the 15th July, 1867 a treaty was concluded between France and Siam, by which the King of Siam recognised the protectorate of the Emperor of the French over Cambodia, renounced his rights of tribute over Cam- bodia, but retained the provinces of Battambang, Siem-Reap and Sisophon. The treaty of the 1st December, 1863 between Siam and Cambodia was declared null. The treaty made no other changes of frontiers, so Siam retained the territory which she then possessed south of thè Dangrek range. 6. About 1892, agitation began in France for the acquisition of the Siamese territory on the left bank of the river Mekong. This is described in a rnemorandum drawn up on the zrst hlarch, 1893 by M. Rolin-Jacquemyns, Mjnister Plenipotentiary and General Adviser to the Siarnese Government (Annex No. 2). It led to another treaty between Siam and France, concluded on the 3rd October, 1893. This treaty did not affect that part of the present frontier in the Dangrek range with which this case is concerned, but by it Siam ceded to France al1 her territory on the left bank of the Mekong and the islands in that river, and agreed not to maintain any troops in Battambang or Siem-Reap. After 1893 the French, under an executive treaty of the same date, maintained a garrison in the town of Chantaboun, in south-eastern Siam. 7.JIn 1903 France made specific new demands upon Siam, in- cluding claims to large areas of Siamese territory. The nature of ' these claims appears from the record of an interview of the 18th June, 1903 between the Siamese Minister in London and Lord Lansdowne, then British Secretary of State for Foreign Affairs (Annex No. 3). The negotiations arising out of these demands led to the Franco-Siamese Treaty of the 13th February, 1904 (Annex Xo. 4). By this Treaty, the Siamese ceded to the French the territory of Luang Prabang on the right bank of the blekong and the Siamese territory south of the Dangrek range in return for minor frontier adjustments in other parts of the frontier. The Treaty provided for Mixed Commissions to be set up to deal with boundary questions, as later set out in the Counter-Memorial. On the 29th June, 1904 an agreement supplemental to this Treaty waç made by Siam and France, under which Siam ceded still further territories to France between the Great Lake and the sea (Annex No. 5). This Treaty and agreement were folIowed in turn by the Treaty of the 23rd March, 1907 (Annex No. 6), by which certain privileges enjoyed by France in Siam were ended, Siam ceded to France the provinces of Battambang, Siem-Reap and Sisophon, and France returned to Siam certain smalI parts of the territories ceded under the earlier treaties. For an account of this treaty, see Annexes Nos. 7a and 7b. These successive acquisitions of territory by France are shown on a map (Annex No. 7c). 8. In none of the treaties subsequent to 1904 is anything said about the temple of Phra Viharn ; but thc Government of Cambodia seems to find some additional reasons for claiming the temple in "religious, artistic and historic" considerations (Memorial, par. 6). The Government of Thailand, while well aware that in the prescnt dispute little weight can be attached to circumstances of that nature, feels bound to refute the inaccurate assertions made in the Memorial. 9. Who the original builders of the temple were is a matter of doubt. The version current among archaeologists in Thailand will be found in Annex No. 8. What is certain is that the high ground in the Dangrek has been Thai territory since the 13th century, and Thai territory has at some periods extended over the plain to the south as well (Annex No. 9). Phra Viharn has thus been connected historically with Thailand for some six hundred years. IO. From n religious point of view, the temple is a Brahminic monument, whereas Thailand and Cambodia are now both Buddhist 172 COUNTER-h1EMOHIAL OF THAILAKD countries. The temple is now respected by Buddhists in both coun- tries, but it has never been a place of regular worship. It played so srnall a part in the religious life of either people that by the ~gth century it had been forgotten, and it was the Thai Prince Sanphasit who rediscovered it in 1899 (Annexes Nos. IO & II). Evcn after its rediscovery the temple remained isolated, and received only oc- casional visi tors. T~isitors from Cambodia were specialIy few, because it is difficult to get to the heights of the temple from Cambodia, there being only one very steep path up the eastern çide of the cliff. II. The Government of Cambodia appears to attach somc im- portance to the fact that the tempIe is "authentically Khmer" (hlemorial, par. 1). The strangeness of this argument needs no emphasis. There are several Khmer buildings outside Cambodia just as there are many Roman buildings outside Italy. On the other hand, it appears from an examination of the architecture, that the temple was obviously built at such a place and in such a way that access to it is from the north, i.e. from Thai- land. This makes it difficult to believe that it was briilt for the use of the inhabitants of the lower plain. CHAPTER II PROVISIONS OF THE 1904 TREAT17 GOVERNING THE FRONTIER AT PHRA VIHARN 12.