A Temple and International Law

Updated: Dec 30, 2021

Introduction


Every country envisions peace because with peace they can generate various positive effects in ecosystems of economic, political, and social. Ensuring territorial stability and sovereignty, it can safeguard the security of nations and its citizen. This note shall briefly explain what is territoriality, sovereignty, and the skirmishes this can result in. The definition of the state is based on international law. The accepted criteria of statehood were laid down in the Montevideo Convention (1933), which provided that a state must possess a permanent population, a defined territory, a government, and the capacity to conduct international relations. Yet sovereignty itself is based on territorial facts and repatriation tugged as legal rights and duties towards a legal citizen. It cannot stay without land the basic legal principles such as sovereignty and authority can be only interpreted in conjunction with the territory.


The legal existence of the territory becomes a critical part of any investigation of international law. The creation of international law is based on the state’s exclusive authority within an agreed territorial context. Indeed most nations evolve through a strong link to the land they occupy. The concept of respect for the territorial integrity of the state is well established as one of the cornerstones of the world order. Territorial integrity is also enshrined in the UN Charter Art 2(1)-(5). This principle is further expounded in a practice of prohibiting intervention in other states’ internal affairs.


However, in the instance of a territorial dispute, it is a disagreement over possession of land between two or more territorial entities. This is also observed over the possession of control of land usually between a new state and the occupying power. Territorial disputes are often related to the possession of natural resources such as river islands or oil resources. Although the dispute can be also driven by cultural, religious, and ethnic nationalism territorial dispute. The results often from the vague and unclear language in a treaty that created the original boundaries. Territorial disputes are a major curse of war and terrorism. As states often tried to assert their sovereignty over territory through invasion and non-state entities tried to influence the perception of politicians through terrorism.


Preah Vihear Temple


The United Nations Charter under Article 2(4) maintains that all members shall refrain in their international relation from the threat or use of force against the territorial integrity or political independence of any state or in are demanded inconsistent with the purpose of the United Nations. In some cases where the boundaries are not marked, a Judgement or Opinion of the International Court of Justice (ICJ) has opined.


The Temple of Preah Vihear is an ancient shrine situated on the borders of Thailand and Cambodia. As per UNESCO, the temple is located in the northern province of Preah Vihear, on the central summit perched on the edge of the precipice under the sovereignty of the Kingdom of Cambodia. Preah Vihear Temple, dedicated to the Hindu God Shiva in the form of Shri Shikarashvara or Lord of the Summit, is an outstanding masterpiece of the Khmer Art, in terms of planning, detail of its decoration, and relationship to the spectacular landscape environment. Built on an 800 meters long axis linked by a system of pavements and staircases along the cliff, Preah Vihear Temple is different from those of Angkor, which was built on an alluvial plain. Due to its unique location, the sanctuary was not built according to the techniques found in the other Khmer temples and this uniqueness also represents a major challenge of the delicate restoration process. The temple attracts dozens due to its considerable artistic and archaeological beauty. It also serves as a natural boundary between the two countries. This region is formed by the high downgrade range which in the area of Preah Vihear rises abruptly out of the Cambodian plane forming a cliff-like enchantment from which the land then descends to the north into Thailand.


The present boundary is the result of treaties that were negotiated in 1904 and 1907. These determined that the line was generally to follow a specified watershed in this area. The watershed line at Preah Vihear followed the edge of the incarnate with the natural result geographically of enclosing the temple within Thailand. However, the maps deviated from the watershed line at Preah Vihear so that the temple was shown as being in Cambodia which until 1953 was a part of the French Indochina. This division went unnoticed by Thailand. The proceedings before the ICJ. In 1959, Cambodia instituted proceedings before the ICJ. They asked the Court that it be declared the sovereign of the area in question. The court ruled in favour of Cambodia by a vote of 9 to 3. The result at first seems controversial. Since it is contrary to the original provision of the Treaty and since the deviation from the watershed was probably due to a typographical mistake. Nevertheless, the Court justified its decision on two bases. First and foremost, that the two countries adopted the maps at the time of their publishing officially. Thereby eliminating the international boundary and the second that the concept of preclusion now prevents Thailand from claiming sovereignty over the territory.


As the facts were reported by the Court, the maps were never specifically adopted by the mixed boundary commission. For that body was resolved before the maps were published. Since the Court concluded that Thailand had adopted the maps in 1908 and until 1909 thus making them a part of the treaty. This conclusion was strengthened by Thailand's continued use of the maps over a long period as well as other events. The Court found it unnecessary to develop the preclusion theory.


Preclusion in international law is the process by which one nation acquires sovereignty over an area by long possession. Adverse to the real sovereign in this case the basis of preclusion would be the assertion of sovereignty in the publication of the maps by Cambodia. Continued acts concerning the temple. Amounting to a continued claim to ownership thus in the view of the evidence taken by the court, Cambodia could now claim the temple. Even though it is considered that Thailand could have properly asserted sovereignty just after the events of 1908.


UNESCO Enters the Fray


Thailand withdrew from the temple complex following the 1962 Judgment. Cambodia enjoyed uncontested sovereignty over the temple until recently. In 2007, Cambodia successfully requested that UNESCO list Preah Vihear as a World Heritage Site, one of two in Cambodia. The map Cambodia provided to UNESCO included part of the promontory on the Cambodian side of the border. Nationalist political parties in Thailand protested the move, leading to Thailand’s withdrawal from both the 1972 UNESCO World Heritage Convention concerning the Protection of the World Cultural and Natural Heritage and the World Heritage Committee. These protests were part of the unrest that led to the 2008 Thai political crisis. Left to the eleventh hour by politicians, skirmishes gained traction between Thai and Cambodian forces. In February 2011, Cambodia sought international assistance from the U.N. Security Council, which called for a permanent ceasefire to be established between the two parties and expressed its support for the efforts of the Association of Southeast Asian Nations (ASEAN) to find a solution.


Return to the ICJ


In April 2011, Cambodia requested that the ICJ, under Article 60 of its statute, interpret its original 1962 judgment. Thailand advanced the argument that the original ICJ Opinion related only to the temple itself (and the immediate vicinity), and not to the entire area surrounding it, where the recent clashes have occurred. Similarly, it argued that the Court did not delineate the entire frontier between the countries, which remains contested. Cambodia countered that by determining that the Temple falls within Cambodian sovereign territory, the ICJ by implication had determined the border between the two countries, at least concerning the temple vicinity. Thai incursions, it contended, thus are akin to violations of Article 2(4) of the U.N. Charter. On the strength of the original ICJ opinion, Cambodia has argued that Thailand remains under a continuing and general duty – rather than a mere instantaneous duty applicable only in 1962 – to withdraw its troops from the area and to respect the integrity of Cambodian territory.


Thus the ICJ ordered, inter alia, that all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia. The Court then defined this zone concerning particular coordinates. In addition, the parties were ordered to continue to cooperate with ASEAN and to allow observers to have access to the provisional demilitarized zone. In keeping with its earlier provision measures, the Court held that the 1962 judgment only addressed a dispute regarding territorial sovereignty over the temple and area on which it is located; it was not delimiting the entire frontier or assigning sovereignty over the entire escarpment or nearby geographic features. Nor did it indicate where Thai troops should withdraw to; rather, it simply indicated that they should withdraw from the temple area. It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.