Maps and borders

A top view of the 11th century Preah Vihear temple in Cambodia on the border with Thailand. The temple overlooks the Cambodian plain, but it faces in the direction of Thailand. Its main access is from the latter direction.

ESSAY
A.G. NOORANI
Frontline
Volume 28 - Issue 06 :: Mar. 12-25, 2011
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU

The Thai-Cambodia border clashes show yet again that maps have no binding juridical significance unless they are accepted by both sides.

INFORMATION is sparse about the recent clashes on the frontier between Thailand and Cambodia. At the centre of the dispute is the 11th century Khmer temple of Preah Vihear. The International Court of Justice at the Hague ruled in favour of Cambodia on June 15, 1962, upholding its claim to the temple. It was designated a World Heritage Site under Cambodia's management in July 2008. The temple looks out from the edge of a steep escarpment over a wide area of northern Cambodia. At its front entrance, away from the cliff, is Thailand, which never quite reconciled itself to the ICJ's adverse ruling.

On July 4, 1962, Srindi Dhanarajata, Prime Minister of Thailand, said that while Thailand would honour its obligations under the United Nation's Charter “it will do so under protest and with reservation of her intrinsic rights”. Two days later Foreign Minister Thanat Khoman wrote to United Nations Secretary-General U Thant in even more ominous terms:

“I wish to inform you that, in deciding to comply with the decision of the International Court of Justice in the case concerning the Temple of Phra Viharan [as Thailand calls the temple], His Majesty's Government desires to make an express reservation regarding whatever rights Thailand has, or may have in future, to recover the Temple of Phra Viharan by having recourse to any existing or subsequently applicable legal process, and to register a protest against the decision of the International Court of Justice awarding the Temple Phra Viharan to Cambodia.”

As in the Sino-India boundary dispute, the parties disagree even over place names. There is, however, a very sound lesson to be drawn from the litigation and its result, the court's verdict. It is the sheer insanity of India's map phobia, which is now 50 years old, promoted as it was from the summit of power. On September 2, 1960, Prime Minister Jawaharlal Nehru told the Rajya Sabha that the book A Geography of China by Wang Hung-Leng, or that part of it depicting large parts of Indian territory as part of China, would “presumably” be seized under the Sea Customs Act.

The court's verdict establishes all too clearly that maps have no binding juridical significance as evidence unless they are agreed and accepted by both sides. No number of Indian or Chinese maps can alter the legal position. It was, as every informed person knows, Nehru's decision on July 1, 1954, unilaterally to alter official maps – even those of 1950 – that showed the entire boundary from the China-Afghanistan-India tri-junction in the west to the China-Nepal-India tri-junction as “undefined” which contributed to the impasse.

To his circular letter to the Leaders of Asian and African countries, dated November 15, 1962, Chinese Premier Zhou Enlai simply annexed both the maps, with results not hard to imagine. They did not enhance India's credibility. There is no difference between an assertion in words and one through maps. A map is only a cartographic statement; an illustration, not a document of title. It can be cited as an admission or assertion. No map has any evidentiary worth at all if published after a dispute has broken out.

Treaty vs. map

Thais also resent the loss of the Khmer monuments at Angkor in the Siem Reap province. At the core of the dispute was the conflict between the definition of the boundary in the Franco-Siamese Treaty of 1904 and its alignment on a French map of 1907. Boundary treaties define the alignment in words as well as on maps. In such cases, generally the text prevails over the illustration. However, the India-Tibet Exchange of Notes in 1914 indicated the McMahon Line only on the attached map. It was not defined in words. There was, of course, no boundary treaty on the western sector. India's claim that the Ladakh-Tibet Treaty of 1842 is a boundary treaty is bogus.

Cambodia was part of the French colony of Indochina until 1954, when it became independent. The relevant provisions of the Treaty of February 13, 1904, which regulated inter alia the frontier in the eastern Dangrek region, were as follows.

Article 1: “The frontier between Siam and Cambodia starts, on the left shore of the Great Lake, from the mouth of the river Stung Roluos, it follows the parallel from the point in an easterly direction until it meets the river Prek Kompong Tiam, then, turning northwards, it merges with the meridian from that meeting-point as far as the Pnom Dang Rek mountain chain. From there it follows the watershed between the basins of the Nam Sen and the Mekong, on the one hand, and the Nam Moun, on the other hand, and joins the Pnom Padang chain, the crest of which it follows eastwards as far as the Mekong. Upstream from the point, the Mekong remains the frontier of the Kingdom of Siam, in accordance with Article 1 of the Treaty of 3 October 1893.”

Article 3: “There shall be a delimitation of the frontiers between the Kingdom of Siam and the territories making up French Indo-China. This delimitation will be carried out by Mixed Commissions composed of officers appointed by the two contracting countries. The work will relate to the frontier determined by Articles 1 and 2, and the region lying between the Great Lake and the sea.”

These articles made no mention of Preah Vihear as such. The ICJ could only give a decision as to the sovereignty over the temple area after having examined what the frontier line was. Whereas the general character of the frontier established by Article 1 was to be a watershed line along the Dangrek range, the exact course of this frontier was to be delimited by the Franco-Siamese Mixed Commission set up under Article 3.

However the line on the 1907 map departed from the watershed along the Dangrek range so as to place Preah Vihear temple on the Cambodian side. Cambodia won its case because that map was accepted by Siam for long. The temple overlooks the Cambodian plain; but it faces in the direction of Thailand. Its main access is from the latter direction. But there is also access from the Cambodian side – and this access, because steep and hard, must – precisely for that reason – have been contrived deliberately and offset purpose, since it invoked a climb of several hundred metres. Yet, difficulty of access is not – or was not – all on one side; there was much evidence in the documentation of the case that the thickness of the jungle on the northern (Thai) side of the temple had the consequence that visits had to be specially prepared, by the clearing of paths and the blazing of trails. This particular difficulty was much less prominent on the Cambodian side; but what was certain was that if, though for different reasons and in different ways, access was not easy from either side, it was feasible from both; it was also achieved from both sides, at varying times and in varying degrees.

The former United States Secretary of State, Dean Acheson, appeared for Cambodia before the ICJ. Thailand's leading counsel was Prof. Henri Rolin, reputed to be the main draftsman of the U.N.'s Universal Declaration of Human Rights. The court was divided (9-3).

The Mixed Commission set up under Article 3 of the treaty began its work in 1905. France and Siam, as Thailand was then known, concluded another boundary treaty on March 23, 1907, which set up another Mixed Commission to delimit the western sector. Since it did not have the resources, Siam asked France to prepare the map for both commissions.

‘No binding character'

Eleven maps were prepared, one of which showed the whole Preah Vihear promontory, with the temple area, within Cambodia. This map figured as Annex I in the court's proceedings. Its opinion on this map should, therefore, provide effective therapy to India's map phobia. “The Court will, for the moment, confine itself to the first of these contentions, based on an argument which the Court considers to be correct, namely that the map was never formally approved by the first Mixed Commission as such, since that Commission had ceased to function some months before the production of the map. The record does not show whether the map and the line were based on any decisions or instructions given by the Commission to the surveying officers while it was still functioning. What is certain is that the map must have had a basis of some sort, and the Court thinks there can be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector. Being one of the series of maps of the frontier areas produced by French Government topographical experts in response to a request made by the Siamese authorities, printed and published by a Paris firm of repute, all of which was clear from the map itself, it was thus invested with an official standing; it had its own inherent technical authority; and its provenance was open and obvious. The Court must nevertheless conclude that, in its inception, and at the moment of its production, it had no binding character.” (Emphasis added, throughout.)

The court proceeded to discuss the evidence on Siam's acceptance of the map over the years, by conduct and in diplomatic exchanges. It found that “the Siamese authorities in due course received the Annex I map and that they accepted it” – the acceptance constituted a modification by conduct.

It is this acceptance, not the intrinsic character or worth, of the map that was decisive. “The Court considers that the acceptance of the Annex I map by the parties caused the map to enter the treaty settlement and to become an integral part of it. It cannot be said that this process involved a departure from, and even a violation of, the terms of the treaty of 1904, wherever the map line diverged from the line of the watershed, for, as the Court sees the matter, the map (whether in all respects accurate by reference to the true watershed line or not) was accepted by the parties in 1908 and thereafter as constituting the result of interpretation given by the two governments to the delimitation which the treaty itself required. In other words, the parties at that time adopted an interpretation of the treaty settlement which caused the map line, insofar as it may have departed from the line of the watershed to prevail over the relevant clause of the treaty.”

Three judges, Moreno Quintara, Wellington Koo, and Sir Percy Spender, former Foreign Minister of Australia, dissented; Spender, in a lengthy judgment. Judge Alfaro concurred with the majority. It is the concurring separate judgment of Sir Gerald Fitzmaurice which deserves particular attention. He was a tower of integrity. As Legal Adviser to the British Foreign Office during the Suez crisis, he ticked off the Lord Chancellor to assert that he was no independent Law Officer of the Crown but a member of the government. While ruling in favour of Cambodia in the final result, he disagreed with the majority of the judges on significant points.

He said: “When all is said and done the only certain thing is that the Annex I map was produced in Paris by French topographical officers in November 1907, and was never, as such, seen (much less approved or adopted) by the Mixed Commission, which indeed appears to have ceased to function entirely after about February of that year – or at any rate it did not, after January, hold any meeting of which there is any record. Whether the map was based on any instructions that the Commission had given, or on rough sketches approved by it, must, in the absence of any evidence, remain a matter of surmise. It seems to me therefore that Thailand succeeds on this part of the case, about which it is hardly necessary to say more than that, however respectable the provenance of the map was, it must be held to have been a purely unilateral production, not in any way binding on Thailand at the moment of its communication to her, and subject entirely, at that time, to her acceptance or rejection, either in whole or in part.”

He, however, found that Siam had by its conduct accepted the map. It was open to Thailand to argue that though it had accepted the map, it was the treaty's reference to the watershed principle which prevailed over the map.

Fitzmaurice opined: “Even if Thailand admitted her acceptance of the map, it was open to her to argue that in a conflict between a treaty clause that says ‘watershed' and a map that says something different, the former must prevail. It was therefore necessary for the Court to deal with the matter on that basis.

“There is of course no general rule whatever requiring that a conflict of this kind should be resolved in favour of the map line, and there have been plenty of cases (some of which were cited before the Court) where it has not been, even though the map was one of the instruments forming part of the whole treaty settlement (as here), and not a mere published sheet or atlas page – in which case it would, in itself, have no binding character for the parties. The question is one that must always depend on the interpretation of the treaty settlement, considered as a whole, in the light of the circumstances in which it was arrived at. So considered in the present case, I agree with the Court that, in this particular instance, the question of interpretation must be resolved in favour of the map line.

“According to the basis adopted for the judgement of the Court (with which basis I agree), it becomes unnecessary to consider how the watershed line really runs at Preah Vihear. I nevertheless desire to say that the expert evidence on this subject, written and oral, convinced me personally that the watershed line runs (and ran also in the period 1904-1908) as contended for by Thailand.” The watershed followed the edge of the cliff of the promontory on which the temple is situated, placing it squarely within Thai territory. It was Siam's acceptance of the map for years which tilted the scales against its case.

It only remains to add that in a classic Arbitral Award in the Island of Palmas Case (1928) the distinguished judge Max Huber said: “Only with the greatest caution can account be taken of maps in deciding a question of sovereignty.”

Recent judgments of the ICJ have further fortified this view. But in India maps hold both educated babus in South Block and semi-educated Customs officials at the ports in their thrall.