INCIDENTS OF GENERAL PRINCIPLE RECOGNIZED BY ICJ- PART 2 by MAHEK UPADHAYAY @LEXCLIQ

PRINCIPLE OF ACQUIESCENCE and ESTOPPEL

Principle of Acquiescence: Silence for a sufficiently long period amounts to tacit consent.

Principle of Estoppel: Fact once accepted cannot be denied.

The objective of this principle is to stop the opposite party in a suit from leading evidence which is inconsistent with his prior conduct and facts acknowledged by him. A party that has acquiesced in a particular situation cannot then proceed to challenge it.

TEMPLE OF PREAH VIHAR CASE (1962)

FACTS

Until Cambodia attained her independence in 1953 she was part of French Indo-China, and her foreign relations-like those of the rest of French Indo-China-were conducted by France as the protecting Power. the present dispute has its fofzs et origo in the boundary settlements made in the period 1904-1908, between France and Siam. (After the completion of the work of the Mixed Commission of Delimitation, the Siamese Government requested the French Government to prepare the maps of the region). Amongst these was one of that part of the Dangrek range in which the Temple is situated, and on it was traced a frontier line purporting to be the outcome of the work of delimitation and showing the whole Preah Vihear promontory, with the Temple area, as being on the Cambodian side. This map was filed by Cambodia as Annex 1 map.

It is on this map that Cambodia principally relies in support of her claim to sovereignty over the Temple. on the other hand, Thailand’s contention was that the frontier line indicated on the map was not the true watershed line in this vicinity, and that a line drawn in accordance with the true watershed line would have placed, and would now place, the Temple area in Thailand. It is further contended by Thailand that she never accepted this map or the frontier line indicated on it, at any rate so far as Preah Vihear is concerned, in such a way as to become bound thereby; or, alternatively that, if she did accept the map, she did so only under, and because of, a mistaken belief (upon which she relied) that the map line was correctly drawn to correspond with the watershed line.

LEGAL ISSUE

whether the Parties did adopt the Annex 1 map, and the line indicated on it, as representing the outcome of the
work of delimitation of the frontier in the region of Preah Vihear, thereby conferring on it a binding character?

ICJ’s OBESERVATIONS

It was claimed on behalf of Thailand that the maps received from Paris were only seen by minor officials who had no expertise in cartography, and would know nothing about the Temple of Preah Vihear. Indeed it was suggested during the oral proceedings that no one in Siam at that time knew anything about the Temple or would be troubling about it. The Court cannot accept these contentions the history of the matter, as set out above, shows clearly that the maps were seen by such persons as Prince Devawongse, the Foreign Minister, Prince Damrong, the Minister of the Interior, the Siamese members of the First Mixed Commission, the Siamese members of the Commission of Transcription; and it must also be assumed that the Annex 1 map was seen by the Governor of Khukhan province, the Siamese province adjoining the Preah Vihear region on the northern side, who must have been amongst those for whom extra copies were requested by Prince Damrong. None of these persons was a minor official. All or most had local knowledge. Some must have had knowledge of the Dangrek region. t thus appears that only nine years previous to the receipt of the Annex 1 map by the Siamese authorities, a considerable number of persons having high officia1 standing in Siam knew of Preah Vihear.

The Court considered the events subsequent to the period 1904-1909. The Siamese authorities did not raise any query about the Annex 1 map as between themselves and France or Cambodia, or expressly repudiate it as such, until the 1958 negotiations in Bangkok, when, inter alia, the question of Preah Vihear came under discussion between Thailand and Cambodia. Nor was any question raised even after 1934-1935, when Thailand carried out a survey of her own in this region, and this survey had, in Thailand’s view, established a divergence between the map line and the true line of the watershed-a divergence having the effect of placing the Temple in Cambodia. Although, after this date, Thailand eventually produced some maps of her own showing Preah Vihear as being in Thailand, she continued, even for public and officia1 purposes, to use the Annex 1 map, or other maps showing Preah Vihear as lying in Cambodia, without raising any query about the matter.

ICJ’s DECISIONS

A clearer affirmation of title on the French IndoChinese side can scarcely be imagined. It demanded a reaction. Thailand did nothing. Furthermore, when Prince Damrong on his return to Bangkok sent the French Resident some photographs of the occasion, he used language which seems to admit that France, through her Resident, had acted as the host country. . Looking at the incident as a whole, it appears to have amounted to a tacit recognition by Siam of the sovereignty of Cambodia (under French Protectorate) over Preah Vihear, through a failure to react in any way, on an occasion that called for a reaction in order to affirm or preserve title in the face of an obvious rival claim.

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