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University of Washington
Peace based on a fallacy is not for the living. The living must and shall demand the
truth, for such is the way of nations, and such is the way of man.—Seni Pramoj,
speaking at the World Court, March 27, 1962 (Pleadings, 564)
Picturing Absence
Let us see, first of all, how the court read a gift of souvenir photographs.
In the written memorials and oral pleadings, both Cambodia and
Thailand highlighted one event from 1930 as a clear display of the
THE TEMPLE OF PREAH VIHEAR 851
meaning of their conduct. It was precisely this event which ICJ also
spotlighted in 1962 as a clear example of their reasoning.
In this connection, much the most significant episode consisted of the visit
paid to the Temple in 1930 by Prince Damrong, formerly Minister of the
Interior, and at this time President of the Royal Institute of Siam. . . . The
visit was part of an archaeological tour made by the Prince with the permis-
sion of the King of Siam, and it clearly had a quasi-official character. When
the Prince arrived at Preah Vihear, he was officially received there by the
French Resident for the adjoining Cambodian province, on behalf of the
Resident Superior, with the French flag flying. The Prince could not possibly
have failed to see the implications of a reception of this character. A clearer
affirmation of title on the French Indo-Chinese 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.
To ascribe first donor status to the party who displays greater rela-
tive prestige is only possible through remembering what the require-
ment to view photographs as evidence has just forgotten, namely
that the giver of a gift is in a higher position than the recipient.
Having forgotten that a Thai Prince was the giver of souvenirs, the
court now seeks in the souvenir photographs signs that would indic-
ate which nation is higher, Thailand or Cambodia, for by a reasoning
just now recalled, whoever is higher must be the first donor. Thus
do symbols of power become not merely its legitimating ideology but
its crucial basis. The theatrical setting—the French flag fluttering
on a secluded mountaintop, the decorated French uniform glittering
in the Oriental sun—is heightened through the play-within-a-play
staging of evidence before the judges of the world.
The force of that theatricality suggests that the photographs had
to reflect an acknowledgment of French sovereignty, otherwise the
French would be in danger of appearing inappropriate and out of
place among their own symbols. The French are caught in a rivalry
with their own regalia that implies a doubly threatening image: both
the flimsy theoreticality of colonial grandeur and the disturbing
resemblance between French officials and Oriental potentates in a
common reliance on quaint symbols. Both would make a mockery of
their mimicry of themselves (see Bhabha, 1984). Sir Frank Soskice,
former Attorney General of Great Britain, alluded to this threat
(perhaps with English relish in French discomfort) in defending
Prince Damrong’s lack of protest.
No doubt he could have taken all sorts of ridiculous steps quite out of keep-
ing with the triviality of the occasion. Prince Damrong, as Professor Reuter
said, had a sense of humour. Professor Reuter omitted to refer to the one
course which a sensible person with a sense of humour would have taken and
which Prince Damrong did adopt, that is to say, to ignore what he regarded
as a piece of upstart arrogance. It would not be the first time in the history
of mankind that a man who held the positions of dignity which Prince Dam-
rong had held had chosen to disregard an indiscretion on the part of a
comparatively junior, swollen headed official. (emphasis mine)
Really, the ownership of Phra Viharn cannot depend upon trumpery incid-
ents of this sort. He sent photographs and a polite and amiable letter of
thanks as an indication that so far as he was concerned no significance was
attached to what he nevertheless undoubtedly regarded as a piece of insol-
ence. (Pleadings, 636)
‘We have received your kind gift of 44 sets of unilateral maps prepared
at Paris, representing, in spite of their title, only the view of the French
Government and the French Commissioners. We must note, further, that
no frontier in the Dangrek was ever agreed upon by the Mixed Commis-
sion, although one of the maps shows a frontier there. This obviously
cannot be considered as binding upon Siam. With renewed expressions
of my highest consideration, etc., etc.’ . . .
Actually, someone in the Siamese Government did have the time and inter-
est, if not to write a letter, at least to speak to the French Minister at
Bangkok; and the Minister wrote a letter. The Siamese official in question
was none other than our old friend, Prince Damrong, who was then Minister
of the Interior and who, 25 years later (so Thailand presently relates) would
be busy exercising sovereignty over Preah Vihear.
What did Prince Damrong say to the French Ambassador. Did he protest?
Did he point out that the Dangrek frontier was merely a figment of the
French officer’s imagination? I shall not keep the Court in suspense. Prince
Damrong asked for 15 more copies of the maps. And his reason? He
explained that he wanted to give these maps to the Siamese provincial
officials . . . Could it have been that Prince Damrong wanted the Siamese
provincial authorities to have copies of the map so that they could tell where
the frontier was not? (Pleadings, 454–455)
Acheson assumes that the primary aim of these maps and the first
thing anyone looking at them would do is to trace the boundaries of
one’s country to make sure it’s all there, nothing missing. Thai his-
torian Thongchai Winidjakul (1994) has shown how mapping Siam
indeed resulted in the construction of the ‘geo-body,’ and argued
that the Bangkok elite and colonial powers worked together to cap-
ture territory in grid lines. Thus the Minutes of the first Mixed
Delimitation Commission, a body composed of French and Thai
members and charged with tracing out the boundaries as defined by
the Treaty of 1904, reveal that both sides desired to obtain maps of
the frontier. But they also show the desire was much more general
than, and unconnected with, the particular delimitation task of the
Commission.
In the meeting of 29 November 1905, the President of the French
section, Colonel Bernard, thanked his Siamese colleagues for leaving
the technical work and surveying to French cartographers. General
Mom Chatidej Udom replied to Bernard saying ‘that by leaving it
to the French Commission to draw up the map of the frontier region,
THE TEMPLE OF PREAH VIHEAR 857
the Siamese Government had indeed wished to show that it had
complete confidence in the French officers.’ (cited in Judgment, 81)
Then on 17 January 1906, Bernard proposed that French officers
should survey further than the immediate vicinity of the border ‘so
as to give a more complete map of the frontier region. At that moment
there was no satisfactory map in existence and it would be useful for
the two countries to have’ (cited in Judgment, 81; emphasis mine).
Sir Percy Spender of Australia added in his dissenting opinion that
the French Commission was engaged in work which went far beyond
the work of delimiting frontiers. In Colonel Bernard’s report of 14
April 1908 to the French Minister of the colonies, it is clear that
this work included ‘ethnographical 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’ (Judgment, 140). Wellington Koo concluded from
all this that the ‘requested map was a separate matter not directly
connected with the work of delimitation . . . and, as such, when it
was made, certainly it could not be regarded as constituting or imply-
ing any binding obligation on Thailand as to the character of the
map to be made’ (Judgement, 81). Thus when the maps of various
frontiers were transmitted to Bangkok, it should not be considered
as the delivery of maps that the Siamese Commissioners requested
and were now called upon to accept or reject, but merely as the
distribution of a ‘general map of the whole frontier region’ that ‘had
formed the subject of an exchange of friendly remarks between the
Presidents of the two national Commissions.’ (Judgment, 82)
Sir Percy Spender picked up the story of how the map series,
including Annex I, did arrive in Bangkok. In July of 1907,
Colonel Bernard, then in France, sought the approval of the French Foreign
Minister of the Colonies [to publish the maps, and] requested 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 authorized for
publication of the ‘Bernard Commission map’ to be provided out of the
budget of Indo-China. (Judgment, 126)
1,000 copies were ordered. 700 were for French Ministry of the
Colonies for despatch to Indo-China. 100 were for sale by the pub-
lisher. 50 for the Siamese Government ‘were handed personally
to the Siamese Minister in Paris without any covering letter. . . .
No comment from Siam was at any time sought. Indeed, none I
858 P. CUASAY
Thailand did nothing. France did nothing. One or the other has to
take the blame for this nothing. The threat of colonial triviality and
trumpery concealed in the photographs has now become a threat to
grand images of State conduct. Unless merely publishing the maps
were hailed as sovereign conduct, the embarrassing matter of do-
nothing sovereignty would remain at-large. Since sovereignty is
emphatically, even obsessively, not nothing, the World Court was, in
effect, asked to guarantee a difference between this nothing and
the sovereignty of States, at least developed States. Therefore this
nothing, this tainted lack of sure control or visible power, must not
hide like some legendary bandit in the gaps of a ‘general and invis-
ible administrative activity’ that is ‘without relevance in so far as
the frontier areas or the Temple are concerned’ to ambush the pre-
tensions of States at inopportune moments (Pleadings, 186; Roger
Pinto for Cambodia dismissing alleged acts of Thai sovereignty).
This threat of doing nothing must be trapped, located, and mapped
to a State. Furthermore, in the very act of being mapped down, noth-
ing or lack must be displaced from posing a threat to sovereignty,
nothing must be seen as recuperable within the State economy.
Soskice put the stakes this high in his closing speech:
After all, the law has to consider and weigh in the balance a formal treaty
on the one side, and an unrecorded implied variation on the other. . . .
Mr. Acheson argued that Prince Damrong, when in 1908 he received the
Annex I map, might have written back making it plain that the boundary
marked on this map was not to be taken as binding on Thailand . . . If
Prince Damrong might have written in these terms, why can it not equally
be said that the French authorities when sending the maps should have
written to Prince Damrong saying: ‘Here are the maps—they involve Thai-
land foregoing the Temple and other areas of territory which she would
have gotten under the watershed boundary laid down by Article I of the
860 P. CUASAY
1904 Treaty. May we take it that Thailand agrees to forego this territory?’
. . . The fact is, neither side wrote in these terms. Both left the matter in
obscurity. It is at this period of time, 54 years later. not easy to say what
was in the mind of either side. Nobody now will ever know. Conceivably
both sides were a trifle neglectful—neither possibly being particularly on
the alert or mistrustful of the other. But Mr. President, Members of the
Court, solemn treaty rights cannot be abrogated by chance. They cannot be
changed in the comparatively informal way in which some systems of
domestic law allow purely private commercial bargains to be changed, made
between private individuals or commercial concerns . . . Boundary lines
between great countries cannot be drawn by accident. (Pleadings, 646)
He noted that Annex I map ‘ bears no date and is not signed by any
authorized experts, still less by the contracting parties’ which would
be ‘the indispensable condition for its validity’ (Judgment, 70). He
cited Article 29 of the Treaty of Versailles, 28 June 1919, that holds
THE TEMPLE OF PREAH VIHEAR 861
‘when there is a discrepancy concerning a frontier delimitation
between the text of a treaty and maps, it is the text and not the
maps which is final’ (cited in ibid.). Finally, he appealed to ‘adequate
expert opinion’ (op. cit., 71) to find the watershed. In short, he fixed
upon scientific clarity to exclude any ambiguities about sovereignty.
As for the majority opinion, do-nothing sovereignty was domestic-
ated as the doing-nothing which constitutes acquiescence. Here is
how Sir Gerald Fitzmaurice, elaborated his agreement with the
majority:
There can be little doubt that Cambodia’s legal position was weakened by
the fact that . . . it was not until 1949 that any protest on the diplomatic
level was made about local acts of Thailand in violation, or at any rate in
implied denial, of that sovereignty. But France . . . was entitled to assume
from the conduct of the central Siamese authorities that the latter accepted
the frontier as mapped at Preah Vihear. On that basis, but on that basis only,
France could safely ignore the activities of local Siamese authorities. . . .
Clearly, if Thailand could now be heard to deny this acceptance, the whole
legal foundation on which the relative inactivity of France and Cambodia
in this region was fully explicable would be destroyed. (Judgment, 64;
emphasis mine)
The Siamese authorities deliberately left the whole thing to the French
elements involved, and thus accepted the risk that the maps might prove
inaccurate in some respects. Consequently, it was for them to verify the
results, if they wished to do so, in whatever way was most appropriate in
the circumstances, e.g., by consulting neutral experts. . . .
[The basis of this principle is] the good faith that must prevail in interna-
tional relations inasmuch as inconsistency of conduct or opinion on the
part of a State to the prejudice of another is incompatible with good faith.
[Secondly,] the necessity for security in contractual relationships.
(Judgment, 42)
Unfortunately the word ‘no’ has been omitted by mistake, and the text
should read: ‘There is in fact no inconsistency with the exercise of Thai
sovereignty.’ (Pleadings, 321)
1
The legal principle of estoppel, preclusion, or acquiescence is translated in Thai
as lak kodmai pidpaak, which stands out so strongly from the surrounding legal verbi-
age that it may be glossed as ‘the shut-your-mouth principle.’
864 P. CUASAY
Stealing Surprise
June 21, 1962, was the Centenary of Prince Damrong and duly cel-
ebrated in Thailand to honor the ‘Father of Thai History.’ On the
same day, the Bangkok Post reported resentment of what it had
earlier dubbed Dean Acheson’s ‘brilliant services’ to Cambodia in
the Temple case (Bangkok Post, 18 June, 1962). Thailand had chosen
its own American lawyer all too well, for he was made a judge of
the World Court and had to withdraw from the case. As the Bangkok
Post explained:
It is regarded here as strange that while America on the one hand made
such a demonstration of solidarity with Thailand as the stationing of troops
here to bolster this country’s defenses against possible Communist aggres-
sion, on the other hand it allowed the use of a presidential adviser by an
adversary of Thailand in a vital case involving strategic land along the
border, sources said.
There has been a feeling in top official circles of doubt concerning American
motives and designs in Southeast Asia as a result of American involvement
THE TEMPLE OF PREAH VIHEAR 865
in the dispute, the sources added. Officials wondered why, when Thailand
engaged the services of Mr. Philip Jessup, eminent American who is not at
all an official, for the case, he was nominated to the World Court. After his
election, Mr. Jessup had to withdraw from giving an opinion for the judg-
ment because he had once been working on the Thai case. (19 June, 1962)
Phra Viharn off from Thailand is almost like cutting a nose off a
face’ (Pleadings, 289).
Speaking on 21 March, Acheson thus had to overcome the
outlandish nature of Cambodia’s claim, and he did it by turning
incredulity against Thailand. ‘The most used word in our oppon-
ent’s vocabulary is ‘‘surprised’’ and in another form ‘‘surprising.’’
They are constantly surprised’ (Pleadings, 446). Acheson under-
mined Counsel for Thailand’s ‘doctrine of incredulity’ (see
Pleadings, 607 and 453) by arguing that ‘Expressions of surprise,
alarm, or indignation are the artifices of advocacy’ (Pleadings,
447). Thailand’s surprise is a pose and pretension, according to
Acheson, who reserved the only genuinely proper surprise in this
case for the absurdity called Thai conduct.
Acheson’s foremost example concerns the Royal Thai Survey
Department. First, Acheson picks up Soskice’s idea that ‘Thailand is
not a corporate entity’ (Judgment, 318). Soskice had applied this
concept to explain how ordinary lay citizens could be unaware of the
exact border while the local officials would be knowledgeable. After
all, said Soskice,
No governments at all can function except through their officials. The acts
of its local officials are as much the acts of government as are acts of the
head of a department. In any event, Thailand’s evidence to which I have
made reference [since page 301] shows that both local and highly placed
officials were involved in the exercise of authority over Phra Viharn.
(Pleadings, 306)
Next, Acheson tries to blur the distinction between local people and
local officials by arguing that Thai Survey Department workers were
as unconcerned with the border as local people. Every time they
needed a map of the scale used by the Annex map, they reprinted
it, undeterred by its geographical inaccuracy and wrong border place-
ment. ‘Sovereignty over Preah Vihear, if the Court please, was to
the Survey Department of the Royal Thai Government a matter of
scale’ (Pleadings, 447). Buoyed upon this play on words, Acheson
manages to turn Soskice’s rhetoric against itself, saying of Thailand
while quoting his opponent, ‘I am respectfully submitting that this
must be the most extraordinary country in the world’ (ibid.). By
reason of the Thai Survey Department’s improper behavior, Acheson
turns against Thailand the very words Soskice had used against Cam-
bodia, and converts Thailand’s feigned surprise into an occasion for
‘genuine’ surprise.
THE TEMPLE OF PREAH VIHEAR 867
But what had initially caused Soskice to characterize Cambodia
as ‘the most extraordinary country in the world’? The context of the
comment was Soskice’s cross-examination of the Governor of the
Cambodian province adjoining the Temple and hence the province
Cambodia alleged was invaded and occupied by Thai troops stationed
at the Temple. Yet ex-Governor Suon Bonn seemed to know little
about international incidents on a site supposedly under his jurisdic-
tion. Hence it was ‘extraordinary’ that
the provincial Governor is kept in ignorance of a foreign invasion by outside
guards on territory which is immediately under his administrative jurisdic-
tion; is kept in ignorance, in other words, of what is described by the French
as ‘un empietement’—trespass, as I understand that word—on to his own prov-
ince. (Pleadings, 342)
Acheson was therefore substituting for the Cambodian ex-
Governor’s extraordinary unawareness of military invasion, one that
contrasted with the much more impressive Thai evidence docu-
menting sovereign control, the Thai Survey Department’s extraord-
inary unawareness of its own impropriety, one that consisted in the
use by official government mappers of an inaccurate map with a
wrong borderline.
But what an extraordinary substitution Acheson is propounding!
If the provincial Governor was ill-informed about Thai troops cross-
ing his border, perhaps it was because in practice the border left the
temple in Thailand, a possibility Soskice designed his questioning to
draw out and thus augment page after page of documents showing
Thailand’s de facto control of the area. But if functionaries of the
Thai Survey Department are less than exemplary, reprinting on one
occasion, and marking it ‘For a Temporary Purpose,’ an erroneous
map (see Pleadings, 607 and 319, and Rejoinder of Thailand, para.
61), Acheson contends that this frivolous indifference to maps is
tantamount to misplacing the border itself, an impropriety so out-
rageous he can proceed to equate it with a governor’s indifference
to foreign invasion. Substituting for Soskice’s use of ‘extraordinary’
another sense, one based on an implicit standard that official map
departments must never be so outrageously careless about their
national boundary lines, even temporarily, Acheson appropriates his
opponent’s incredulity. In so doing, he makes the difference between
genuine and feigned surprise follow the divisions between a Western
model and an Oriental mime, between a map and its territory, and
between central officials and local authorities. Because the central
868 P. CUASAY
But then how different these Siamese must be from Colonel Bernard,
President of the French Commission of Delimitation in 1904, of
whom Acheson says, he was ‘much too French and precise for such
sloppiness in expression’ (452, arguing for exactitude of titles on
Commission documents). And what a dangerous attitude this would
be for the region in 1962, pointed out Acheson early on March 1:
It will not have escaped the notice of this Court that the position now taken
by the Government of Thailand would, if sanctioned by the Court, throw
this entire frontier into uncertainty and chaos. If the maps published in
1908 under the authority of the Franco-Siamese Commission of Delimita-
tion are ‘apocryphal’ as regards Preah Vihear, then they are equally apoc-
ryphal as regards the entire frontier between Cambodia and Laos, as delim-
ited under the Treaty of 1904, extending for many hundreds of miles. No
longer will there be in that area a fixed and certain frontier . . . instead . . .
the frontier will consist merely of such topographical features as watersheds
and crests of mountains, with each of the three interested States free to
THE TEMPLE OF PREAH VIHEAR 869
interpret the precise meaning of those generalities as it wills . . . (Pleadings,
148)
2
Annex I map seems to have required action for the first time in 1939, when
Luang Wijit Wathakan of the Fine Arts Department examined the map, noticed
the error, and notified the Phibul government to take it up with the French. See
Suriyawut, 1993: 683. This article also reproduces the photograph of Prince Dam-
rong at Phra Viharn on page 680.
870 P. CUASAY
area on the ground and looked under the trees during the rainy
season to see which way streams in fact ran. Here is only one
example, notable for combining appropriation of the opponents’ dra-
matic gesture, use of an overlay, and the forgetting, at the climactic
moment, of a telegraph wire.
It is March 22, and Acheson has just used overlays to prove Thai-
land, in attempting to demonstrate the untenable effects of following
the Annex I frontier line, had merely superimposed the frontier line
on the modern map without any appropriate adjustment. Now he
quotes extensively from a speech by Henri Rolin, an attorney for
Thailand who had claimed two villages mapped onto the Cambodian
side are actually on the Thai side.
[Rolin’s words quoted back by Acheson:] It is true that according to
Map No. 5 (Second Commission) these two villages which are located
on the plateau are placed inside the Cambodian border, actually right
close up against the Cambodian border. [Now from here on I submit
that M. Rolin steps from his role as advocate into the role of witness.
He continues:] However, we have to conclude that this solution which
has been advocated by the Second Commission and by Lieutenant Malan-
dain had, in the light of experience, we suppose, proven to be practically
undefendable because facts, Members of the Court, are stronger than a map.
[And he went on:] It has been impossible, it has been impossible [he says]
for the Army of Cambodia to maintain its sovereignty over this pied a
terre which scrupulously has been reserved for it some tens of metres or
maybe a few kilometres from the watershed. It was considered in practice
[he says] it was considered in practice that it was obviously necessary to
permit Thailand to remain in possession of these villages up to the edge
of the cliff unless insurmountable difficulties were to be encountered.
[And then came the dramatic gesture of M. Rolin, He picked up a map,
this map, and he said:] Here is proof of the statement: a map, Members
of the Court, a Cambodian map. This is a map which shows the district
of Siem Reap (Annex 81a). It is on a scale of 1:200,000 and is dated
July 1939, tempore non suspecto. And here I find a frontier [he continues]
which substantially reverts to that of Sector 5 with this difference . . .:
that Dak Ream and Kouan are both located north of the border with a
path coming from the south crossing the border to lead to Dak Ream
in Thai territory. [And then this bit of evidence:] We have checked this
by telegraph following the discovery of the fact and have found that
the village of Khoun is a village still inhabited and effectively under
Thai administration. (Pleadings, 459; French original 255; Acheson’s
emphasis)
Ghost Witnesses
I gather that Mr. Acheson is pained if opposing Counsel says they are sur-
prised at statements that he makes. In order to spare him anguish, I will
therefore not say that I am surprised at these statements of his; although
politeness certainly requires that I equally should not be understood to say
that I am not surprised. (Pleadings, 620)
With prim English ‘politeness,’ Sir Frank Soskice set out to list the
lengths to which Acheson had gone to undermine Thailand’s expert
witnesses from the International Training Center at Delft, Dr Ver-
stappen, who directed the project and checked the aerial photogeo-
logy work, and Mr Ackermann, who conducted a topographical
investigation on the ground at Khao Phra Viharn. Here are some of
Acheson’s barbs:
872 P. CUASAY
Now comes a most important statement from Mr. Black. The east outflow of
this stream (the east outflow; that is, the outflow into Cambodia) was, he
says, once stopped up, so local legend had it . . . Mr. Black himself saw no
evidence that the valley had been used as a reservoir, but he said that the
job of turning it into one would have presented no difficulty.
In 1955, then, the east outflow of this stream was unblocked. Can one doubt
that it would have presented even less difficulty thereafter than in the year
A.D. 900 to block it, had it been desired to do so? . . .
Between them, these two witnesses account for the presence of such a
stream in 1924 (Parmentier’s first visit), 1929 and 1930 (Parmentier’s
second and third visits) and 1955 (Black’s visit). The same stream is even
shown on one of the many versions of the physical features produced by
Thailand’s experts—their map 75c. (Pleadings, 468; emphasis by Acheson)
Indeed, continues Acheson in the afternoon of 22 March,
To walk along a stream, to observe its course and then report what one has
seen, does not require any expert knowledge at all. Anyone can do this. In
particular, Messrs. Parmentier and Black did do it. So, when Parmentier
and Black say they saw a different and inconsistent stream [from the one
observed by Ackermann], the three of them are speaking on the same level:
that is, they are all three speaking as witnesses. Intrinsically . . . none of
them is entitled to any greater weight than any of the others.
Now we do not assert that Mr. Ackermann did not see what he says he saw.
We hope and believe that the Court will be impatient with assertions, if
874 P. CUASAY
they are made, that Messrs. Parmentier and Black did not see what they
say they saw. (Pleadings, 470)
Let me repeat for the sake of clarity that I am not challenging Mr. Acker-
mann’s statement that the stream, in fact, does not now do this. (Pleadings,
471)
The Members of the Court neither sent independent experts to the
Temple, nor needed to, since their decision rendered the actual
watershed moot. Few expressed an opinion: Fitzmaurice thought the
watershed ran as contended by Thailand, but voted with the major-
ity; Koo though the Court should have sent experts. Somehow the
incontrovertible nature of the terrain, which Soskice thought only a
‘perverse ingenuity’ could repudiate, seems to have vanished into a
quibble over ‘centimetres’ of ‘gentle slope,’ as if the cliff face itself
had become as insubstantial as the ghosts conjured to reverse the
water flow upon it. Somehow Colonel Bernard’s desire for a natural
and visible frontier line, like a watershed borne by a cliff, had come
to appear naive and difficult, as if invisible witnesses could transpose
in the span of decades what Acheson could transpose by the magical
876 P. CUASAY
Anticipatory Violence
What has been said thus far may be easily summarized: mimesis is
the threat in the gift. When Prince Damrong gave a gift of souvenir
photographs, they threatened to represent the trumpery of colonial-
ism, and the gift had to be misrecognized as a counter-presentation
acquiescing to, or failing to protest, French sovereignty. When both
Parties represented themselves as sovereign States, the evidence
threatened to reduce that sovereignty to a matter of Minutes, visits,
and mostly doing nothing, whereupon the gift of Colonel Bernard’s
general map series of frontier areas was misrecognized as solemn
acceptance of an implied agreement, established, so the World Court
judged, by Thailand doing nothing. And when Dean Acheson serviced
the judges with the gifts of surprise, superiority, and thrilling ghost
witnesses, he showed how pleasurable to its masters and how
threatening for its adversaries the technology of mimesis, consisting
in this case of maps, could be. The question now becomes, What
makes mimesis threatening? It seems widely assumed that a repres-
entation may be more or less fitting for a particular reality, and
that when mimesis is behaving properly the fit is good but when the
representation errs it does violence to the reality. I suggest that we
reject this false choice between bad, threatening mimesis and good,
proper mimesis, as also we should reject a false choice between Thai-
land or Cambodia. This sovereign pretense of having a choice, this
presumption that to apply judgment is to end violence, is a profound
disavowal of the historic process by which differences are constructed
so as to be apparent, acceptable, relevant, or estimable. To sacrifice
THE TEMPLE OF PREAH VIHEAR 877
that past may be the very action that destines mimesis for violence.
For the rest of our journey, then, I want to explore the absence
opened up by the World Court’s disavowal of its violent pedigree,
the founding violence of modern nation-states. Shut out and denied,
this violence fled in two directions: into the future, and into the
landscape.
In its Preah Vihear decision, ICJ upheld the stability of contracts,
the finality of frontiers, the propriety of judicial settlement, all in the
name of promoting peace and ending the violence of international
altercations. On March 27, 1962, Seni Pramoj questioned whether
this violence was not merely an effect of Cambodian representations.
Mr. President, Members of the Court, during the course of this case, Cam-
bodia has more than once charged Thailand with having committed acts of
violence against Cambodia. Much emphasis has been placed in the Cam-
bodian pleadings on such words as ‘violence’, ‘armed violence’ and ‘force’.
It has been Cambodia’s intention to make Thailand appear in the eyes of
this Court and hence in the eyes of the whole world, as an aggressive bully,
a cruel and destructive menace to the peace and security of small, distressed
Cambodia. It has been Cambodia’s intention to sway this Court with sym-
pathy for its cause, the cause of the helpless against the powerful. Cam-
bodia has come before this Court wearing a mantle of injured innocence, a
small boy seeking the warm protection of the society of nations. Mr. Truong
Cang has told the Court of Cambodia being opposed from the outset by
violence, armed violence. He hoped that the court would settle an unhappy
frontier incident, that there would not be created other incidents that
might be more distressing and doubtless ‘more destructive’ for that little coun-
try, Cambodia.
I ask the Court to pause a moment and consider: When did all this violence
occur? How many gallons of blood have been spilt over Phra Viharn? When
were Cambodian guards forcefully pushed over the precipice by a Thai
hand? Does there appear in any of the documents submitted by either party
evidence that a Thai even shook a wrathful fist at a Cambodian?
I ask the Court to consider facts, not the blown-up oratory of Cambodia.
What are these facts? [He reviewed the events leading up to the proceed-
ings and concluded:] All this was done without a shot being fired. What
then is the violence alleged by Cambodia? (Pleadings, 563–564)
3
For Cambodian views see Petite anthologie de la presse thaie, 1960; Livre blanc sur la
rupture des relations diplomatiques entre le Cambodge et la Thailande, le 23 octobre 1961, n.d.
(1962?). For Thai views see Facts about the Relations between Thailand and Cambodia,
1961; Foreign Affairs Bulletin (FAB), 1961ff. A contemporary overview is found in
Far Eastern Economic Review of 23 Nov., 1961 as well as Singh, 1962. Useful secondary
literature of the period includes Leifer, 1963; Nuechterlein, 1965; Smith, 1965;
Wilson, 1963.
THE TEMPLE OF PREAH VIHEAR 879
T-28 aircraft to the Cambodian Air Force in addition to previously
given H-19 helicopters and anti-aircraft guns, and was considering
donating additional H-34 troop-carrying helicopters and M-113
amphibious armoured personnel carriers (FAB Aug.–Sep., 2(1): 37,
1962; Nuechterlein, 1965: 254). And Sihanouk’s response? Said the
Chairman of the Cambodian delegation to the United Nations 17th
General Assembly: ‘The Prince did not fail to give notice, without
any possible ambiguity, to the Western Powers that he would not
hesitate, if he did not obtain satisfaction as to substance, to ensure
the security of Cambodia by appealing to the Chinese People’s
Republic and the Soviet Union for troops to protect that security’
(quoted in FAB Oct.–Nov., 2(2): 176, 1962). Such paradoxes
‘seemed to prove that Cambodia could get aid from all sides in the
Cold War without having to make the adjustments that committed
nations such as Thailand had to make in terms of less flexibility in
foreign policy’ (Nuechterlein, 1965: 251).
To speak schematically, Cambodian independence and neutrality
was based on a strategy of playing the superpowers off against one
another. The most convenient way to lash out at the United States
was to bait its ally, Thailand, by edging closer to the Communist
bloc. To keep Cambodia as far from Communism as possible, Amer-
ica would overlook Thailand’s distress and engage in friendly persua-
sions that Thailand undoubtedly noted, ‘with a shock of recognition,’
as disturbingly similar to gifts received as an ally. Thailand, out of
a logic alloyed with envy, would thus attempt to increase its own
independence in foreign policy and ‘began to consider a shift to a
neutral policy and rapprochement with the Communist bloc’ (Smith,
1965: 186). Or more exactly, a policy ‘not-pro-West . . . not pro-
Communist . . . also not-neutralist,’ and hence quintessentially ‘Thai-
ist’ or ‘based on Thai history, Thai culture, Thai interests’ (quoted in
Wilson, 1963: 87). However, this need to be Thai through negative
difference would, at the very least, confuse and collapse the differ-
ence, so assiduously cultivated by Prince Sihanouk, between valiant
Cambodian neutrality and Thailand’s (materially enviable) slavery
to her American master.
Prince Sihanouk, poisonous invective aside, was quite lucid about
the need to prevent Thai neutrality:
On the one hand [America] furnishes our adversaries with all the means
necessary to menace our existence, while on the other hand it constitutes,
voluntarily or not, by its presence within the borders of our adversaries, a
sufficient guarantee for our survival.
880 P. CUASAY
4
July 3 Communique, Information Office of the Prime Minister; July 6 letter by
Minister of Foreign Affairs to UN Acting Secretary General.
882 P. CUASAY
The border had been sealed off by Thai soldiers; the area was flooded with
troops. The refugees were ordered, busload by busload, to walk back into
Cambodia. They were told there was a path down the mountains but that
on either side of it there were mine fields. They were also told that on the
other side the Vietnamese army was waiting to welcome them. Thai soldiers
said, ‘Thai money will not be valid in Kampuchea; we ask you to make a
voluntary contribution to our army.’
The path down the mountains became steeper, the jungle thicker. Dozens,
scores of people fell onto mines. Those with possessions had to abandon
them to carry their children down. . . . For days this operation went on.
Altogether, between 43,000 and 45,000 people were pushed down the cliffs
at Preah Vihear. It took three days to cross the mine field . . .
One refugee who finally managed to escape back to Thailand told UNHCR
officials: ‘The crowd was very dense. It was impossible to number the victims
of the land mines. The wounded people were moaning. Tears I thought had
dried up long ago came back to my eyes—less because of the sight than
from the thought that those innocent people had paid with their lives for
their attempts to reach freedom in a world that was too selfish.’
. . . Throughout the rest of June and early July the refugees remained in
the no man’s land of Preah Vihear . . .
What did the UN high Commissioner for Refugees do on their behalf: From
Geneva there was silence. From Bangkok, inaction. (Shawcross, 1984: 89–
91)
A Haunted Landscape
Sir Frank Soskice also commented that whenever Counsel for Cam-
bodia approached the evidence for sovereign control, ‘they give their
own description in general terms of the nature of the disputed terri-
tory. From this they draw the inference that no governmental activity
would be expected there, except activity of one particular kind
[French archaeology] of which they happen to have evidence . . . This
is what Professor Reuter was doing when he dwelt upon the lack of
water at Phra Viharn, the absence of a regular population, the diffi-
culties of access, and so on’ (Pleadings, 637). But as undaunted as
a colonial explorer, Professor Reuter nevertheless proceeded to
populate this desolate place with his own image of elephant hunting
while contesting a piece of Thai evidence concerning a provincial
permit for catching wild elephants.
After a short disquisition upon the usual methods employed for catching
elephants, he expressed the opinion that these methods could only be used
on level ground. Having had the privilege of hearing Professor Reuter’s
argument in this case, I should never be surprised to be told that he was
an authority on some hitherto unsuspected subject; so it may be that he is
an expert on the hunting of elephants in the forests of Thailand. (Sir Frank
Soskice, Pleadings, 640)
So much for the Parisian elephant hunter. But the disputed region
is in fact the land of peoples including the Kui [gooy], some of whom
are elephant hunters.
Erik Seidenfaden, who was Deputy Inspector General of the Pro-
vincial Gendarmerie from 1908 to 1919, patrolled the area of north-
eastern Siam where the Temple of Preah Vihear stands. He wrote
884 P. CUASAY
hands and feet were cut off and displayed in a bird cage’ (Murdoch,
1974: 550). Perhaps violence erupting over the slave trade spilled
over into the tense relations between the French authorities and
marginalized tribes, igniting a fuse soaked with millennial proph-
ecies. In any case, it seems millennial movements first flared into
violence in French Laos. Ong Keo, who led the uprising there, was
from the Kha group Alak. Ong Keo and Loven chiefs Komadam and
Komaseng started appearing on white cotton panels as meritorious
figures. By June of 1901, many people from Laos were involved,
including the Uppahat (the second highest ruling official) of Attapeu,
the area from which many of the Kui had migrated in the 17th
century to live areas now under Siamese control. Joining this group
was Ong Wan or Ong Man, who became a leader on the Thai side.
On March 28, 1902, Ong Man led his followers to rob and burn the
Siamese town of Khemmarat where they executed two officials and
took the governor prisoner (Murdoch, 1974: 57). Before the rebel-
lions could become an excuse for French invasion, the Siamese gov-
ernment responded forcefully. The regional Commissioner Sanphas-
itthaprasong called for 400 soldiers from Nakhon Ratchasima: 200
by way of Surin, who divided into 100 to Sisaket and 100 to Ubon,
and 200 by way of Suwannaphum, who divided into 100 to Roi Et and
100 to Yasothon. On April 12, 1902, the soldiers at Ubon formed an
ambush at Baan Sapheu in which 300 were killed and 400 were
captured (Murdoch, 1974: 59). There were many other outbreaks.
Ultimately 3 leaders were arrested in Surin and 4 in Sisaket; a petty
official in Sangkha and another rebel leader in Sikoraphum were also
captured with about 400 other rebels. All leaders were put to death,
except for three who were ordered to remain in the monkhood for
life. All the followers were ordered to perform the ceremony of
drinking the holy water of allegiance and then released
(Paitoon,1984: 145–6). The violence on the Indochinese side lasted
longer. Ong Keo’s old ally Khomadam continued with armed resist-
ance, and was finally killed in an attack in January of 1936. His son
Si Thon, however, was in 1974 the Vice Chair of the Pathet Lao for
the Southern Hill People, causing no end of consternation in the
crises of Laos that haunted Southeast Asian governments at the time
of the case concerning the Temple of Preah Vihear (Murdoch, 1974:
60–1).
Thus despite the appearance of prompt suppression, both colonial
French in Indochina and internally colonializing Thai in Siam, when
looking at Kui peoples, sensed weird beliefs and savage passions just
beneath the surface. Thai historian Tej Bunnag concluded that
THE TEMPLE OF PREAH VIHEAR 887
Although the government was able to suppress the Holy Men’s Rebellion
quickly, the story of phumibun could not be seen to conclude as promptly.
Prince Sanphasitthiprasong himself ordered that ‘About these rebel groups,
understand that they still have smart people . . . who do not show their face
[mai auk na] and go about freely [thieo] because many more groups proceed
quietly [pai ngiap-ngiap].’ Which means that a military victory [chaichana
thang thahan] is not truly a definite victory [mi chai chaichana yang dedkhat].
(Tej, 1967: 28, original in Thai)
In the Cold War period, it seemed natural to recollect these memor-
ies in conjuring up the need for counter-insurgency and frontier-
control in this landscape of hidden threats. In addition, Seidenfaden
found the Cahiers of l’Ecole Française d’Extrème Orient to be replete with
references conflating the beliefs of marginalized tribesmen with viol-
ent tendencies.
The Katu is an animist with violent passions who believes firmly in sorcery.
The outcome of such passions and superstitions is murder and cruelty. In 1937
a revolt broke out due to superstition. This time it was about some miraculous
water obtained from a python god. It made people invulnerable and pro-
tected the world against the cataclysm of the three flaming suns, etc. This
reminds me of the Phu mi bun movement in northeast Thailand in 1902
where like superstitions were indulged in. The Kha or Moi killed all white
animals and left everything in order to obtain this miraculous water.
(Seidenfaden, 1941: 45; emphasis mine)
The violence throughout the region from 1902 to 1937 was thus
seen as a continuous stream of superstitious brutality. ‘This time’
miraculous water was the cause, just as earlier ‘like superstitions
were indulged in.’ But since these superstitions mark the traces
of state-sanctioned violence under erasure, the possibility remains
that Katu, Kha, Moi, or Kui were precipitated into aggression by
the disavowed violence of the colonial state. This masking of the
violence of rule as bloody custom has been identified by Michael
Taussig as a general property of colonialism, ‘the mimicry by the
colonizer of the savagery imputed to the savage’ is dubbed ‘the
colonial mirror of production’ (Taussig, 1993: 66). Amidst a his-
tory of gunsmoke and colonial mirrors, the dominated landscape
emerged haunted, bearing a watershed that would run with
blood.
In this journey among the ghosts that haunted the case of Preah
Vihear at the World Court, we have examined at exhausting
888 P. CUASAY
length the threat in mimesis and the violence of the nation state.
We have seen the ghostly ways difference is recuperated within
international law to reinscribe colonial-type relations of power. We
have seen how systematically disavowed violence, whether arising
from the monstrous symmetry of the dynamic between ally and
neutral, or evident in the founding traumas of modern statehood,
returns to haunt from the future or escapes to bathe the landscape
in a mist of wildness and desolation. As if on pilgrimage to Mount
Preah Vihear, we have reached the top of the broken staircase.
But can we find an alternative solution? Perhaps, as a pragmatic
matter, since Thailand and Cambodia have brought only blood
and bitterness to this place, it might be desirable to preserve it
from both. It could be given back to nature and the indigenous
peoples, to be managed cooperatively between the two govern-
ments in equal partnership with local communities, as a trans-
border Protected Landscape, Anthropological Reserve—Natural
Biotic Area and/or Multiple Use—Managed Resource Area (IUCN
categories V, VII and VIII). But the deeper issue about facing up
to and living wisely with the violence of law, the state, and repres-
entation is not a question with a clear, painless, or stable answer.
At the very least, having climbed the broken staircase, it requires
a refusal to view the Temple of Preah Vihear as a picturesque
ruin, a spectacle for tourists showcased as a world heritage site
and exhibited as a poignant testimony to the grandeur of an
ancient civilization. Such celebration of ruins would draw its power
from ideas of the Picturesque developed in Europe during the age
of colonialism and deployed in the heritage tourism of today. As
a perceptive critic of the politics of the Picturesque has written,
‘The fear of and containment of violence is paramount in the
Picturesque and is best expressed in the period’s obsession with
ruins. The ruin is an object which has sustained violence, be it
the violence of man or simply the violence of time, but this
violence is mitigated by being placed in a distant and unrecover-
able past’ (Modiano, 1994: n18). We must insist instead that the
violence on the border is relatively recent, a poignant testimony
to the grandeur of our modern civilization, and that unless the
everyday lives of local people are not recovered as a picturesque
ruin by the workings of a culturally complacent heritage conserva-
tion, the ghosts of the temple will persist to haunt restlessly the
forgetfulness of present times.
THE TEMPLE OF PREAH VIHEAR 889
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