2. PRELIMINARY OBJECTIONSOF THE GOVERNMENT
OF THAILAND
Introduction
x. On the 6th October, 1959 the Governrnent of the Kingdom of
Cambodia filed in the Registry of the International Court of Justice
an Application, attempting to bring before the Court a dispute
between Cambodja and Thailand. By that Application, the Govern-
ment of Cambodia asked the Court
"to adjudge and declare, whether the Kingdom of Thailand
appears or not:
(1)that the Kingdom of Thailand is under an obligation to
withdraw the detachments of armed forces it has stationed
since 1954 in the ruins of the Temple of Preah Vihear;
(2)that the territoria1 sovereignty over the Temple of Preah
Vihear belongs to the Kingdom of Cambodia".
These conclusions were repeated in the Cambodian Mernorial,
submitted to the Court in january, 1960.
2. In accordance' with article 62 of the Rules of Court, the
Government of Thailand has the honour to submit by this pleading
two preliminary objections to the jurisdiction of the Court to
entertain this case. Since, by virtue of paragraph 3 of article 62 of
the Rules of Court, the proceedings on the merits are suspended
upon receipt by the Registrar oapreliminary objection, the Govern-
ment of Thailand feels justified in refraining at present from filing
a Counter-Mernorial, notwithstanding the order of the Court dated
the 5th December, 1959.Accordingly, the present pleading contains
no discussion of the rnerits of the issue raised by the Cambodian
application, except a few observations, of which thepurpose is to
make clear the attitude of the Government of Thailand and the
reasons for which that Government reçpectfully challenges the
junsdiction of the Court. '
3. The boundary line between Thailand and Cambodia in the
region in which the temple of Phra Viharn ("Preah Vihear" is the
Cambodian spelling) stands was laid down by the Franco-Siamese
Treaty of the 13th February, 1904 ,he relevant part of the text
of which is set out in Annex I hercto. (Cambodia at that time
formed part of French Indo-China and was under the protection of
France. Thailand was then, and during long pcriods of her history,
known as Siam.) This Treaty provided that the boundary should
follow the line of the watershed between the basin of the Nam Sen134 PRELIMINARY OBJECTIONS OF THAILASD
and the Mckong, on one side, and the basin of the Nam Moun, on
the other side, this watershed being by nature a fixed physical
feature. The result was to leave the temple of Phra Viharn in Thai
territory, as iç shown*by the.map .which is Annex z hereto. There-
fore, the Governrnent of Thailand would-approach an investigation
of the rnerits willingly and with confidence, if the present case lai,
properly within the jurisdiction of the Court. However, in spite of
the strength of the Thai case on'the mcrits, there are other con-
siderations which oblige the Governrnent of Thailand to raise the
objections to the jurisdiction which are set out in this pIeading.
4. The Government of Cambodia seeks 'tofound the jurisdiction
of the Court principally upon the declaration of the 20th May, 1950,
by which the Government of Thailand purported to renew the
Siarnese declaration of the 20th September, 1929, accepting the
compulsory jurisdiction of the Permanent Court of International
Justice. The declaration of the 20th May, 1950 was made in good
faith; but the Government of Thailand submits, for the reasons set
out in paragraphs 12 to 15 hereof,that in fact it was founded upon
a view of the Statute of the Court which the Court has since held
to be wrong, and in consequence was void ab initioand incapable
oftaking any effect. This ia matter ofgreat importance to Thailand.
Upon the validity or invalidity of the declaration of the 20th May,
1950 depends, not only her liability to be brought before the.Court
in this caseor in other cases, but also her right herself to instituté
proceedings against States dich have accepted the Court's corn-
pulsory jurisdiction. For this reason it is, in the view of the Govern-
ment of Thailand, essential that this question be raiçed, so that
from the Court's decision ThaiIand may know whether çhe has ever
effectively accepted the compulsory jurisdiction under Article 36 (2)
of the Statute. PRELI,\IISARY OBJECTIOSS OF THAILASD I35
FirstObjection
5. The first objection of the Government of Thailand is that the
Thai declaration of the 20th May, 1950, purporting to renew for a
further period of ten ycars the declaration of thc 20th Scptember,
1929 ,y which the Siamese Government recognized as compulsory
ipso JRCLO and without any special convention, on condition of
reciprocity, the jurisdiction of the Permanent Court of International
justice, was whoIIy ineffective, because the declaration of the 20th
September, 1929 lapsed on the dissolution of the Permanent Court
on the 19th April, 1946 and thereafter kvas incapable of renewal;
and that, in consequencc, the Government of Cambodia, when it
filed its application on the 6th October, 1959, was not entitled to
invoke against Thailand the jurisdiction ofthe Court under Article 36,
paragraph 2 of the Statute.
THEFACTS
6. The following is the text of the Siamesc declaration of the
20th September, 1929 accepting the compulsory jurisdictioii of the
Permanent Court :
"On behalf of tlie Siamese Governrnent, 1 rccognise, subject to
ratification, in relattonany other Bfemberor State which accepts
the same obligation, thatisto Say, on the condition of reciprocity,
the jurisdictioof the Court as cornyiilsory ipsojactaand without
any special convention,in conformity with Article 3G,paragraph z
ofthe Statute of the Court, foa period of tcn years, in al1disputes
as to ~vhich no othcr mcans of paciîic scttlcmcnt is agreed upon
between the Parties."
This declaration came into force on the 7th May, 1930, when its
ratificationu7asdel~ositcd with the Secretary-Gencral of the League
of Nations. It was rene~ved on.the 3rd May, 1940 for a further
period of ten years, within the same limits and subject to the samc
conditions and restrictions.
7. The follon~in~is the text of thc Thai cleclaration of the 20th
Nay, 1950 :
"1 have the honour to inforrn you that by a declaratiokdated
September 20, 1920 (sic)His hlajesty's Goverliment had accepted
the compulsory jitrisdiction of the Permanent Court of International
Justice iricoiiformity with Article 36, Ijuragraph2 of the Statute
for a period of ten ycars and on conditiori of reciprocity:.That
ten years.n has beciirc~iewedon May 3,1940for ririotheperiod of
In accordancc with the provisiuns of Article 36, paragraph4 of
the Statutc of the International Court of Jiisticc, 1 have noithe
honciir to inforryou that His AIajesty'sCovernmerit hereby reriey13~ PRELIMINARY OBJECTIONS OF THAILAND
the declarationabove rnentionedfor afurtherperiod oftenyearç as
from May 3, 1950 with the iimits and subject thesame conditions
and reservations as set forth inthe firsdeclaration ofSept. 20,
1920 (sic)."
8,Thailand was not invited to participate in the San Francisco
conference of 1945 ,nd consequently waç not a signatory of the
Charter of the United Nations, including the Statute of the Inter-
national Court of justice. She made her first preliminary inquiry
about the inclusion of her name among the members of the United
Nations on the 20th May, 1946. A forma1 application for member-
ship followed on the 31st 'July, 1946. When this application was
considered by the Security Council's Cornmittee on the Adinission
of New Members, the representatives of two permanent members
stated that they could not then support the Thai application, and
the Thai Government requested thatthe consideration of its appli-
cation by the Security Council be adjourned. Thereafter, on the
29th Novernber, 1946, the representative of France (one of the two
permanent members mentioned above) told the Security CounciI
that in his Government's view there was no longer any objection
to the admission of Thailand to the United Nations, and France
would support her application. He had brought to the Security
Council's attention an agreement of the 17th November, 1946
between Tliailand and France, which by its second Article stated
that France would no longer oppose the admission of Thailand.
(Security Council Records, First Year, Second Series, No. 23, 81st
Meeting, 29th November, 1946, pp. 505-506.)The Security Council
thereupon recommended Thailand's admission to the United
Nations, and this recommendation was accepted by the General
Assembly.on the 15th December, 1946. The process was completed
by the signing of the Instrument of Adherence by Thailand on the
16th December, 1946, after the close of the Assembly's session.
Thailand thereby became a party to the Statute of the International
Court of Justice. (Resolutions adopted by the General Assembly,
Fiwt Session, Second Part, p. 53. ) he date of Thailand's admission
to the United Nations, 16th December, 1946, is significânt,because
almost eight months had by then elapsed since the dissolution of
the Permanent Court of InternationaI Justice on the 19th April,
1946. The Assembly of the League of Nations, meeting on the
18th April, 1946,adopted a resolution providing that the Permanent
Court of International Justice be for al1 purposes regarded as dis-
solved with effect from the day following the close of that session
of the Assembly. (Resolutions of the League of Nations Assembly
of the 18th Aprfi, 1946.)
9, At the time at which Thailand became a party to the Statute
of the Court (i.e. on the 16th December, 1946), it was generally PRELIMINARY OBJECTIONS OF THAILAND I37
considered that a State which had made a declarationaccepting the
compulsory jurisdiction of the Permanent Court, and became a
party to the Statute of the International Court before the expiry
of the period of that declaration's validity, was deemed to accept
the compulsory jurisdiction of the International Court for the rest
of that period. This was thought to be the effect of Article 36,
paragraph 5 of the Statute of the Court, which reads as follows:
"Declarations macleunder Article 36 of the Statute of the Perrna-
nent Court of International Justice and which are stinlforce shall
be deemed, as between the partiesto the present Statute, to be
acceptances of the compulsory jurisdiction of the International
Court of Justice for the periociwhich they still have to run and in
accordance with their terms."
IO. Taking this view of Article 36, paragaph 5 of the Statute,
Thailand did not make a declaration accepting the compuIsory
jurisdiction of the Court upon her admission to the United Nations.
She believed that her declaration of the 20th September, 1929,
renewed on the 3rd May, 1940 ,emained in force and was deemed
to be an acceptance of the Court's compulsory jurisdiction by virtue
of Article 36, paragraph 5.
II. The Court's judgrnent of the 26th May, ;959, in the Case
concernitzgthe Aerial Incident of July27th,I955 (Israel v. Bzilgaria),
Preliminary Objections(I.C.J. Reports, 1959, p. 127) has now shown
this view of Article 36, paragraph 5 of the Statute to be wrong.
The Court decided in that case that Article 36, paragraph 5 binds
only States which were represented at the San Francisco conference
and were signatories of the Charter of the United Nations. (There
are suggestions in the judgment that Article 36, paragraph 5 might
also have bound a State which had become a party to the Statute
of the International Court between the San Francisco conference
and the dissolution of the Permanent Court. In fact, no State did
become a party to the Statute during that period.) The reason for
this decision is put thus in the judgment (at p. x38):
"Since this provision (i.e. Article 36, paragraph 5) was originally
subsc~ibed to only by the signatory States, itwas without legal
force so far as non-signatory States were concerned: it could not
preserve their declarations fromthe lapsing with which they were
thrcatened by the impending dissolutionof the Permanent Court. ..
In the case of signatory States, by an agreement between them
having full legaleffect,Artic36,paragraph 5 governed the transfer
frorn one Court to the other of still-existing declarations;in so
doing, it maintained an existing obligation while modifying its
subject-rnatter. So far as non-signatory States were concerned,
somethingentirely different wasinvolved: the Statute, in the absence
of their consent, could neither maintain nor transform their original
obligation. Shortly after the entry into force of the Statute, the
dissolutionof the Permanent Court freedthem fromthat obligation."I$3 PRELIJIINARY OBJECTIONS OF THAILAXD ,
12. Since.the judgment of the Court in the case of lsrael v.
Bulgaria, it cannot he doubted that Thailand's acceptance of the
compulsory jurisdiction of the Permanent Court was not converted
into an acceptance of the cornpulsory jurisdiction of theInternation-
al Court by Article 36, paragraph 5. The Siamese declaration.of the
20th September, 1929, as renewed on the 3rd May, 1940 apsed on
the dissolution of the Permanent Court on the 19th April, 1946.
To take another expression used by the Court in the case of IsraeE
v. Bztlgaria, on the 19th April, 1946 Thailand was "freed from the
obligation" which she had accepted by her declaration of the 20th
September, 1929. On the 16th December, 1946, when Thailand was
admitted to the United Nations and became a party tothe Statute
of the International Court, she did not accept any such new obli-
gation. It is only by her declaration of the 20th May, 1950 that
Thailand can be alleged to have accepted the compulsory jurisdiction
of the International Court subsequently. The question tllerefore
arises, What waç the true effect of the declaration of the 20th May,
19 50?
13. The document of the 20th May, 1950 did not contain an
original declaration.Al1that the Thai Government professed to do
by that document was to "renew the declaration above mentioned",
i.e. thatof the 20th September, 1929 ,s renewed on the 3rd May,
1940, from the 3rd hlay, 1950. Any force which the document might
have, therefore, was not original, but clerivative. It depended for
its opcration upon thc survival until the 3rd May, 1950 of the
renewed declaration of thc 20th Septernber, 1929 as an effective
instrument capable of being further renewed. In fact, that declaration
had lapsed on the 19th April, 1946.As the Court said in the judgment
in the case of Is~sael;. Bzjlgaria (ap. 145):
". ..it is one thing to preserve an existing undertaking by
changing its subject-matter; it is quite another to revive an under-
taking which has already been extinguished."
The document of the 20th May, 1950, drawn irp in the beIicf that
the declaration of the 20th Scptember, 1929 had been transformed
by article 36, paragraph j of the Statute into ari acceptance for the
reçt of its term of the compulsory jurisdiction of the International
Court in place of that of the Permanent Court, was framed in terms
apt to preserve an existing undertaking. It was not ayt to achieve
what the Court dcscribes as "quite another" thing, i.e. the revival
of an undcrtaking which had been extinguisheci years before. As is
known from the judgme~it of the lntl?rnational Court of Justice,
the Sianlese declaratiorl of the 20th September, 1929, as renewcd in
1940, lapsed on the 19th April, 1946. This being the case, the
declaration was not capable of bcing renewed or preçerrred.It follows
that the document of the 20th May, ~gjc was devoid of legal effect.
- 14. Thus, the document of the 20th May, 1950 could not operate
to renew the declaration of the zotli September, 1929. This beingso,it may be suggested that it shou1dbe regarded asa Iiewand original
declaration accepting the cornpulsory jurisdiction of the Inter-
national Court. The Government of ThaiIand submits that such an
interpretation is not admissible. To renew a supposedly existing
declaration is one thing. To make a new declaration is a diffcrent
thing. The document of thc zotli May, rg5o was clesrly doing thc
former and not the latter. The fact that the supposition upon which
that document ~as bascd is now found to have becn iricffective in
lnw to accomplish that purpose does not justify transmuting it into
a clocurnent of a diffcrcnt chatacter with a different objective.
15. Furthermore, an obligation to recognise the compulsory juris-
diction of the International Court is not the same as an obligation
to recognise the cornpulsory jurisdiction of the Permanent Court.
This was pointed out by the Court in the following passage in the
case of IsraeE v. Bzllgarin (atp. 143):
"This (i.e. the recognitioil of the compulsory jurisdiction of'the
International Court)-constitiitea new obligation wliich waç,cloubt-
less,no more onerouç than the obligationmhich waç to disappear
but it was ncverthelcss rincw obligation."
ThaiIand had until the 19th April, ~946been under aiiobligation
to recognise the cornpulsory jurisdiction of the Permanent Court.
On the 20th May, 1950 she was not, and never had been, under an
obligation to recognise the compulsory jurisdiction of the Inter-
national Court. To recognise that jurisdiction would have becri for
Thailand to accept a neivobligation. The document of the 20th May,
Igjû cannot, in the submission of the Government of Thailancl, be
interpreted as an acceptance of a new obligaTion, as opposed to an
attempted renewaI of an obligation beIieved aIready to exist.
16.The Governrnent of Thailand, for the reasons set out in
paragraphs rz to 15 above, suhmits:
(i) that the Siamese declaration of the 20th Scpternber, 1929
lapsed on the dissolution of the Permanent Court of Inter-
national Justice 011 the 19th April, 1946, and thereaftcr
could not be rencwed;
(ii) that the Thai declaration of the 20th May, 1950, since it
purported to do no more than renew the said declaration
of the 20th Septeinber, 1929 ,as ineffective abi~zitio;
(iii) that the Cambodian application of the 6th Octolxr, 1959,
since it is expressed to found the jurisdiction ofthe Court
upon the said cleclaration of the 20th hlay, 1950, is in-
effective to establiçh the conipulsory jiirisdiction of the
Court under Article 36, paragraph z of the Statute;
(iv)that in conscgucnce the Cotirt is without jurisclictiori to
entertain the said application. PRELIMINARY OBJECTIONS OF THAILAND
SecondObjection
17. The jurisdiction of the Court in the present case can only
rest upon the consent of the Government of Thailand. The second
objection of the Government of ThaiIand is that such consent cannot
be derived or inferred from the invocation by the Government of
Cambodia (Application, para. 2) of the Gencral Act for the Pacific
Settlement of International Disputes of the 26th Septernber, 1928,
18.Cambodia became asovereign State in 1953 ,aving previous-
15.' een a protectorate of France (Application, para. 29).Cambodia
became a member of the United Nations on the 14th Uecember,
1955. Thailand was an original member of the League of Nations.
On the 16th December, 1946, shc became a mernber of the United
Nations.
19. The Application of Cambodia (para. II) refers to the Treaty
of Friendship, Commerce and Navigation of the 7th Decembcr, 1937
betwccn France and Siam. Cambodia, however, docs not invoke
this treaty as a basis for jurisdiction, nor docs she cite Article 21
of it, which provides:
Article21
"In accordance with the principle embodicd in the Covenant of
the League of Nations, the High Contracting Parties agree to apply
the provisions of the General Act for the Pacific Settlement of
International Disputes, adopted on Scptember 26th, 1928, by the
Assembly of the League of h'ations, for the settlement of any
disputed questions which may arise betwcen them in the futureand
which cannot be settled through the diplornatic channel." l
20. The Application of Cambodia (para. 14) further mentions a
protocol, or Settlement Agreement, of the 17th November, 1946
hetween France and Siam, which set up a special Franco-Siamese
Commission of Conciliation. Article 3 of this Settlement Agreement,
reproduced in Annex V to the Cambodian Memorial, provides:
l Thistranslationisgiven in the League of NalionsTreaty Series,Vol.20113..
The officia1 French text reads as follows:
"ConformBment aux principes énoncés dans le Pacte deSociété des Nations,
les Hautes Parties Contractantes conviennent d'appliquerispositions de l'Acte
généralpour le règlement pacifique des différends internatiadopte le26sep-
tembre 1928par l'Assemblée delaSociété desNations, au réglernent des questions
litigieuses qui surgiraient entre elles dans l'avenir et quine pourraient êtrerésolues
par la voie diplomatique." YRELIMINARY OBJECTIOSS OF TBAILAND 141
'Article 3-Immedintely after the signing of the present Agree-
ment, France and Siam shall set up,by application of Article21 of
the Franco-Siamese Treaty of Dccember 7th. 1937, a Commission of
Conciliation composed of two rep~esentatives of the parties and
three neutrals, iriconformity with the General Act of Geneva of
September 26th, 1928for the pacific settlement of internatioiial
disputes, which regulatcs the constitution and the ~vorkingof the
Commission. The Commission shall begin its Iiork as soon as
possible after the traiisfer of the territories specified in the znd
paragraph of Article I shall have beeii effected. It shalbe charged
with tiic esamination of cthnical, geographical ancl econorn'icargu-
ments of the parties in favoitr of the revision or confirmation of the
cliiuscs of the Treaty of October 3rd 1893, the Convention of
February 13th 1904 and the Treaty of Marc11 23rd 1907, kept in
force by Article 22 of the Treaty of December 7th 1937."
2r. Again, Carnbodia does not plead this Settlement Agreement
between France and Siam as a basis for the Court's jurisdiction.
As stated by the Court in the Case of Certain Norwegian Lonns,
(Judgrnent of july 6th, 1957:I.C.J. 'Reports of 1957, pp. 9,251,the
reference to these two agreements, which are not pleaded by the
Government of Cambodia as a basis for the Court's jurisdiction,
would not justify the Court in "seeking a basis for its jurisdiction
different from that ivhich" Cambodia "itself set out in its Appli-
cation". Nevertheless, the complete inapplicability of these two
agreements, as iwrellas that of the General Act, will be noted.
22. Thailand is not, and at no time was, a party to the General
Act. She never acceded to the General Act as a whole or to any of
its procedural Chapters by the mcthods provided by Article 38 of
the General Act, either directIy or indirectly. Cambodia is not, and
at no timc was, a party to the Gcncral Act. She, also, never accedcd
to the Act as a whole or to any of its procedural Chapters either
directly or indirectly.
23. The Gencrsl Act contains special provisions designed to
enable States partics to the Act to becorne aware promptly when
the accession of another State might make the Act's provisions
applicable to that othcr State's relations with the existing parties.
Article 38 provides :
".4ccessions ta the present General Act may extend:
A. Either to al1 the provisions of the Act (Chapters 1, II, III
and IV);
B. Or to tltosc provisions only which relate to conciliation and
judicial settlement (Chapters 1 and II), together with the general
provisio~lsdealing with these procedures (Chapter IV) ;
C. Or to those provisions only which relate to conciliation
(Chapter I), togethcr with the General Provisions concerning that
procedurc.
12142 PRELIbliNARY OBJECTIONS OF THAILAND
The Contracting Parties may benefit by the accessions of other
parties only in so far as they have ihemselves assumed the same
obligations."
Article 43 provides :
"1. The present General Act shali be open to accession by al1the
Heads of States or other competent authorities of the blcmbers of
the LeagueofKationsaiid the non-MemberStates towhich theCouncil
of the League of Xations has communicated a copy forthis purpose.
2. The instruments of accession and the additional declarations
provided for by Article 40 shall be transmitted to the Secretary-
General of the Lcague of Nations, who shall notify their receipt to
al1 the Members of the League and to the non-Member States
referrcd to in the preceding paragraph.
3. The Secretary-Gencral of the League of Nations shall draw up
threc lists, dcnominated respectively by the letters A, H and C,
provided for in Article 38, inrwliich shall be shown the accessions
and additional declarations of the Contracting Parties. Thcse lists,
wliichshall bc continually kept i~pto date. shall be piiblishcd in
the arinual report ~iresented to the Assembly of the League of
Nations by the Secretary-General."
Special sources of verification are thus provided to make it possibIe
to determine whether any State was or became a party to the
General Act. An esamination of these sources shows that neither
Thailand (Siam) nor Cambodia ivas ever considered such a party.
24. In discharging the dutics imposed on him by Article 43 of
the General Act, the Secretary-Generai of the League of Nations
utilized the practice of attaching to hisdwltual Reports to the Leaguc:
Assembljr a scries of Annexes, to record ivhich States were parties
to part or al1 of the Chapters of the General Act, In none of thesc
Annztal Reports or Annexes was Siam or Cambodia listed as a party
to part or al1of the provisions of the General Act.
25. The Annual Year Books of the Pernia.nent Court of Inter-
national justice (Series E), list, infer alia, the instruments which
govcrn the jurisdiction of the Court. Here again an esamination of
these records of the Permanent Court t-,International Justice shows
that ncither Thailand nor Cambodia was ever listed as a party to
part or al1 of the General Act.
26. The Reports, frorn the Eighth tu the Sixteenth .~~olurneisn-
clusive, also include many bilatcral arbitration, conciliation and
judicial settlement trcaties. These are placed under the headin. of
"Instrurncnts for the Pacific Settlement of Disputes and conccrning
the Jiirisdiction of the Court", and many of them are based on the
models of the General Act. But the 1937 Treaty of Friendship,
Commerce and Navigation between Thailand and France is recorded
under the section entitled "Other Instruments" providing for the PRELIMINARY OBJECTIONS OF THAILAKD I43
jurisdiction of the Court, not under the heading of "Instruments
for the Pacific Settlement of Disputes and concerning the Jurisdiction
of the Court".
27. Thus, since neither Thailand nor Cambodia was ever a party
to the General -4ct for the Pacific Settlement of International
Disputes, that convention cannot be invoked by Cambodia to found
the jurisdiction of the Court over the matter set forth in the
Application.
28. By the time Cambodia acquired independent and sovereign
status (in 1953 according to the Application. paragraph 29),and
certainly when she attained rnembership of the United Nations in
1955, the United Nations General Assen~bly had recognized the
limited efficacy of the General Act.
29. The Intcrim Committee of the General Assembly had discussed
the doubtful efficacy of the General Act as to States which had not
adhered to it during the life of the League of Nations, and before
the dissolution of the Permanent Court of International Justice on
the 19th April, 1946. In its Report to the General Assembly, the
Interim Committee suggested a new and revised General Act, which
would be a new treaty in which references to League of Nations
organs would be replaced by references to the appropriate United
Nations organs. In describing a Belgian proposa1 ultimately adopted
by the GeneraI Assembly, the Report of the Interim Committee
stated:
". ..Thanks to a few alterations,the newGcneral Act would, for
the benefiofthose States accedingthereto, restore the originaleffect-
iveness ofthemachinery provided in thc Act of 1928,an Act which,
though still theoretically in existence, has becomelargely inappiic-
able.
"Itwas noted, for example, that the provisions of the Act relating
to the Permanent Court of International Justice had lostmuch of
their cffectiveness in respect of partwhich are not Members of
the United Nations or parties to the Statute of theInternational
Court ofJustice."
(Reports of the InteriCommittee oj the Geneval Assembly; Third
Session Supplement IO, U.N. Doc. A/605, 13 August 1948, para. 46,
pp. 28-29.)
30. The Secretary-General of the United Nations never, in his
Annual Reports to the General Assembly, reports adherences to the
General Act of 1928, presumabIy because he does not consider that
he succeeded to the obligations of the League's Secretary-General.
It was, indeed, such doubts as these about the continued efficacy
of the 1928 General Act which led the United Nations General
Assembly in 1949 by its resolution to instruct the Secretary-
General "to prepare a revised text of the General Act ...and to
hold it open to accession by States under the title 'Revised General
Act for the Pacific SettIement of International Disputes' ". (G.A. PRELIJZINARY OBJECTIONS OF THAILAND
144
Res. 268 (III)28 April 1949.)The Secretary-General has sincc then,
in pursuancc of ArticIe 43 (3) of the Rcvised General Act, Iisted
regularly States acceding to the Revised Act.
31. This procedure began with the Atrnz~alReport of the Secre-
tary-General covering the period from the ~jth July, 1949 to the
30th June, 19jo. The A,B and C Lists are found under the Revised
Act, and the accessions on the part of Belgium and Swedcn are
recorded (U.N .oc. A11z87,p. 123).The subsequent report repeats
the list (U.N. Uoc. AI1844, p. 183). The next report adds the
Norwcgian and Danish accessions (U.N. Doc. Alz141, p. 157) The
reports from the Eighth tothe Fourtcenth Sessions,inclusive, record
no new üccessions.(U.N. DocsAlaqoq, p.141; A/2663, p.99 ;A/z~II,
P. 104; A/3137. p. 98; A/3594, pp. 122-3; Aj3844. p. 82;A/4132,
y. 95,respectively).
3% Thc volume entitled, Stnlrls of Jfultilaterchl Conveiltions of
which the Secretary-GeneralActsas Depositary, which is constantly
kept up to date, also includcs theA, B and C Lists and records
only thesc four accessions (U.N. DocSTILEGJ3, IO Octobcr 1952).
33. A publication cntitled, Signatures, Ratifications, Acceptnnces,
Accessions, etc., concerning th.e~WzlltilnteralConventiorzsand Agree-
ments in respecO/ wlzichtheSecretary-Genernlacts as Deposilary, the
purpose of ulhich is to continue the League's old practice of publish-
ing lists of agreements and conventions,notes that while the Unitxi
Xations General Assembly has sdopted a nurnber of protocols
amending conventions concluded under League auspices, these
amendments are not yet binding on al1States parties tothe original
conventions. Thereforc, it n7asconsidered advisable to publish not
only the new, but the o!d, lists as well.The latter lists only reproduce
the parts given iri the League's archives or supplied by dcpositary
governments. Under "Pacific Settlement of International I>isputesJ',
the Twenty-first League List concerning the General Act is re-
produceci, aithough theentry concerning States as to which the Act
is open to accession has heen deleted. The Revised General Act,
with the four accessions, is included (Sales Ko. 19V.,91, pp. 25
and 23, respectively).
34. The Yearbooks prepared hy the Registrsr of the International
Court of Justice, beginning with that for the year 1949/50, which
contain texts govcrning the Court's jurisdiction, include thc Revised
General Act, but not the original General Act of 1928.The chronolog-
ical table reports the Kevised General Act as having bcen signed
on the 28th April, 1949, and under Contracting Parties lists the
entry: ''Resolution of the Gcneral Assembly of the United Nations"
(I.CJ. Yearbook, rgqg/xg50, pp. 178, 192).
35. Cambodia could have acceded to the Revised Gerreral Act,
and Thailand could have acceded to it. In fact, the United Nations
records examined above confirm that neither State has clone so. PRELIJIINARY OBJECTIONS OF THAILAND I45
36. Although the negotiations which took place between the
representatives ofThailand and Cambodia in August and Septemùer,
19j8 resulted in draft proposals submitted by both delegations in
which reference iç made to the possible use of the Revised General
Act, none of these draft proposals was accepted bythe other party.
Therefore, no agreement providing for such a settlement was con-
cluded between Cambodia and Thailand.
37. Even if Cambodia's reference to the General Act of the 26th
September, 1928 can bc interpreted as an invocation of the Revised
General Act of 1949 the Government of Cambodia has cited to this
Court as the first basis of its jurisdiction a treaty to which ncither
Cambodia nor Thailand is, or ever has been, a part?.
38. The Govcrnment of Cambodia cannot legally rely on Article zr
of the 1937 Treaty of Fricndship, Commerce and Navigation
between France and Siam by invoking the fact that it was formerly
a protectorate of France. The Application of Cambodia, as stated
above in paragraph 19, refers to this treaty, Article 21 of which
provides in general for the utilization of the procedures of the
General Act of 1928for the pacific settlemcnt of uiisettled disputcd
questions between France and Siam. Neither the Application nor
the Memorial ventures to invoke this provision directly as a basis
for the jurisdiction of thc Court.
39. The Treaty of the 7th Dccember, 1937 by express provision
ncgatives the automatic al>plicability of its terms to deyendencies
or subdivisions of France. Article 22 in its final paragraph provides:
"The provisions of the present Treaty may, by a declaration
agreed upon betireen the tmo Goïrerriments, be subsequently
extended inwholeor iripart to French coloniesand possessionsand
tocountries placed uni-lerFrench protectorate or mandate'."
Apart from the fact that the parties no doiibf: had in mind the
possibility ofsubçequent extension by agreement of rights of corn-
merce and navigation, and not of the political right to invoke
procedures for pacifie settlement, no such agrecd dedaration
between France and Thailand was ever concluded with respect to
Cambodia.
40. Under the customary international law of state succession,
if Cambodia is successor to France in regard to the tracing of
frontiers, she is equally bound by treaties of a local nature which
determine the methods of marking these frontiers on the spot.
However, the general rules ofcustomary international law regarding
state siiccession do tiot provide that, in case of succession by sepa-
l The officia1French text reads as follows:
"Lesdispositions du present traitépouêtreult4rieurement étenduesen tout
protectorat ou le mandat de la Frarice par une déclaration concertéeentre les deuxe
gouvernements."14~ PRELIXINARY OBJECTlOh'S OF THAILAND
ration of a part of a State's territory, as in the case of Cambodia's
separation from France, the new State succeeds to politicalprovisions
in treaties of the former State.Such an interpretation of the treaty
would turn it from a bilateral treaty between France and Thailand
into a multilateral pacific settlement treaty between France,
Thailand and Cambodia (see O'Connell, The Law of State Succes-
sion, 1956, p. 31). The Government of Thailand doeç not believe
that any precedent can be found to support the proposition that
Cambodia, by right of succession, could hold Thailand to the
fulfilment of such purely political provisions as those for pacific
çettlement found in Article 21 of the Treaty of 1937 between Siam
and France. The controversial aspects of the law of state succession
relate to such matters as the transfer of obligations, the respect for
private rights (see Oppenheim, International Law, Eighth Ed. by
Lauterpacht, Vol. 1,pp. 157 ff.), and the status of servitudes (see
Vali, Servitudes of International Law, and Ed. 1958, pp. 319 ff.).
The question whether Thailand is bound to Cambodia by peaceful
settlement provisions in a treaty which Thailand concluded with
France isvery differentfrom such problems as those of the obligations
of a successor State to assume certain burdens which can be identi-
fied as connected with the territory which the successor acquires
after attaining its independence. It is equaiiy different from the
question of the applicability of the provisions of the treaty of 1904
for the identification and demarcation on the spot of the boundary
which was fixed along the watershed.
41. 1n the case of the çeparation of Pakistan frorn India, the
Assistant Secretary-General in charge of the Legal Department of
the United Nations wrote a brief opinion, in the course of which he
stated that :
"The territory which breaks off, Pakistan, willbe a newstate:
and it willnot;of course, havemembership inthe United Nations."
(U.N. Doc. PM/473, 12 August 1947.)
The matter was subsequently considered in the Sixth Committee
of the General Assernbly, which eventualIy reached the conclusion,
inter alia,
"That whena new State is created, whatever may be the territory
and the populations which it comprises and whether or not they
formed part of a State Member of the United Nations, it cannot
under the system of the Charter claim the status of a Member of
conformity with the provisions of the Charter."a(U.N. DOC.AJC.in
1/212,II October 1947.)
In subsequentcomment, the Senior Legal Adviser, United Nations
Legal Department, expressed the following views:
"Another aspect of the problem of successionof rightand duties
is presented by the a~eement between India and Pakistan reiating PRELIMINARY OBJECTIONS OF THAILANU I47
to international arrangements. It is provided in this agreement that
both India and Pakistan succeed to the rights and obligations under
ailthe international agreements to ivhich India has been a party,
with the exception of rnembership in international organizations
and agreements which apply exclusively to the territory of only one
of the dominions. The intended effect of this provision appears to
be to extend to Pakistan treaty rights and duties which would not
devolve upon it under the generally accepted rule of Iaw. For it has
been recognized that when a territory breaks offand becomes a state,
succeçsion takes place only 'with regard to such international rights
and duties of the predecessor as are logically connected with the
part of the territory ceded or broken off, and with regard to the
fiscal property found on that part ofthe territory'. Conversely,it
has been clear that no succession occztin~egard to rights andduties
of the oldState which arise froitsflolitical treatsuch as tvealieO/
alliance or ofpacifiesettlement.It has also been the view of the
majority of writers that the new State does not succeed to other
non-local agreements, such as treaties of commerce and extra-
dition.
"In view of these principles, what effect rnust be given to the
bilateralagreement between the two dominions purporting to
transfer to the new State al1 treaty rights and obligations? It may
be doubted that it will be given effect (evifintended) with respect
to agreements which are essentially political, since both precedent
and principle arecontrary to recognizing successio~inthese matters.
On the other hand, it does not appear improbable that succession
will be recognized with respect to multipartite treaties concerned
with social, economic, and technical matters. As an indication of
this development, it may be observed that the Secretariat, as
depositary, raised no objection to Pakistan signing the protocols
providing for the transfer of functions under the Convention for the
Suppression of Traffic in Women and Children of 1921 and under
the Convention on Obscene Publications of 1923. Since these proto-
colswere open only to parties tothe conventions, Pakistansubmitted
a declaration stating that it conçidered itself a party to these
conventions 'by the fact that India became a party to the above-
mentioned international conventions before the 15th day of Au~us~,
1947' A.lthough the conventions in question cannot be regarded as
local or territorial,they are essentially nonpolitical agreements
intended to have universal application; accordingly, it does not
seem unreasonable to extend the rule regarding succession by new
states to such treaties." (Schachter, "Tke Develofiment of Inter-
national Law Through the LegaEOpinions of the United Nations
Secretariat", XXV I3.Y.I.L. (1948). pp. 91, 106-107 ;mphasis
supplied, six footnotes omitted.)
42. In a provision analogous to Article 36 (5)of the Statute of
this Court, Article 37 of the Statute provides that, whenever a
treaty or convention in forceprovides for reference to the Permanent
Court of International Justice, the matter shall "as between the
parties to the present Statute, be referred to the International Court
of Justice".148 PRELIMINARY OBJECTIONS OF THAILAND
43. The history of the Revised General Act in the Interim
Cornmittee (see paragraph 29 above) suggested in 1948 that the
General Act had lost much of its effectiveness as to parties not
members ofthe United Nations or not parties to this Court's Statute.
As to Thailand, not a signatory of the Charter or the Statute, the
General Act would not be applied hy virtue of Article 37 of the
Statute of the Court:This follows from the judgment and reasoning
of the Court in the Caseconcerlzingthe Aerial Inciden ot]uly 27th,
1955 (Israel v. Bztlgaria), Prelinzinary ObjectionsJudgment ofMay
26th, 1959: I.C.J. Reports 1959p ,. 127: cf. paragraph Ir above.
44. If the Court were now to interpret Article 21 of the 1937
Treaty between France and Siam as constituting consent in advance
to its jurisdiction through a broad reference to the General Act, then
this case would bz the first instance in the history of the General
Act ofits provisions being interpreted as giving either the Permanent
Court or this Court jurisdiction in the absence of more specific
consent by the parties. In no case has the jurisdiction of either
Court been founded on the General Act. It would also involve this
Court in interpreting Article 37 of its Statute as constituting consent
to its jurisdiction by Thailand, although Thailand was not repre-
sented at the San Francisco conference and was not an original
member of the United Nations.
45. The Government of Thailand, for the reasons set out in
paragraphs 17 to 44 above, submits:
(i) that jurisdiction of the Court to entertain the Cambodian
Application cannot be based on the GeneraI Act for the
Pacific Settlernent of International Disputes of the 26th
September, 1928, because neither Thailand nor Cambodia
has ever been a party to that Act;
(ii) that jurisdiction ofhe Court to entertain the Cambodian
Application cannot be based on the Franco-Siamese Treaty
of Friendship, Commerce and Navigation of the 7th De-
cember, 1937, because
(a) Cambodia does not in her pleadings reIy on that
Treaty as a source of jurisdiction,
(b) Cambodia is not a party to that Treaty, and
(G) Cambodia has not succeeded to any of the rights of
France .under. that Treaty, , PKELIMINARY OBJECTIONS OF THAILAND
Conclusion
46. The Government of Thailand respectfully asks the Court to
declare and pronounce that it has no jurisdiction to entertain the
Cambodian Application of the 6th October, 1959,for the following
reasons :
(4
(i) that the Siamese declaration of the 20th September, 1929
lapsed on the dissolution of the Permanent Court of Inter-
national Justice on thc 19th April, 1946, and thereafter
could not be renewed ;
(ii) that theThai declaration of the 20thMay, 1950 purported
to do no more than renew the said declaration of the 20th
September, 1929, and so was ineffective ab initio;
(iii) that consequently Thailand has never accepted the com-
pulsory jurisdiction of the International Court of Justice
under Article 36, paragaph 2, of the Statute.
(i) that ncither Thailsnd nor Cambodia has ever been a party
to the General Act for the Pacific Settlement of Inter-
national Disputes of the 26th September, 1928;
(ii) that consequently the said Act does not constitute an
agreement of the parties to submit the said dispute to the
jurisdiction of the Court.
(i) that Cambodia has not sought to found the jurisdiction of
the Court uyon the Franco-Siamese Treaty of Friendship,
Commerce and Xavigation of the 7th December, 1937;
(ii)that Cambodia is not a party to the said Trraty, nor has
she succecded to any of the rights of France thereunder;
(iii) that consequently the said Treaty does not constitute an
agreement of the parties to submit the said dispute to the
jurisdiction of the Court.
(Signed) VOWGSAMA AYIANKURA
Agent of the Government .
May 1960. of Thailand.I5O ANNEXES TO PRELIMINARY OBJECTIONS (NO. 1)
Annexes to Preliminary Objections of the Government of Thailand
Annex I
France, 1904
CONVENTION BETWEEN FRANCE AND SIAM MODIFYING
THE STIPULATIONS OF THE TREATY OP THE
3RD OCTOBER, 1893, REGARDING TERRITORIAL
BOUNDARIES AND OTHER ARRANGEMENTS
Signed at Paris, Febmary 13, 1904
(Ratifications exchangut Paris D,ecember 9, 1904.)
The President of the French Republic and His Majesty the King of
Siam, desiring to render closand more intimate the friendly relations
which exist between their two countries and to settle certain differences
which had arisen concerning the interpretationof the Treaty and
Convention of the 3rd October,1893,decided to enter into a new Con-
vention and appointed for this purpose their plenipotentasrfollows:
The President of the French RepubliM. Théophile Delcassé, Minister
of Foreign Affairs, etc.; and
His Majesty the King of Siam, Phya Suriya Nuvatr, his Envoy
Extraordinary and Miniçter Plenipotentiaryto the President of the
French Republic, holder of the First Class of the Roya.1Order of the
Crown of Siam, Grand Officerof the National Order of the Legion of
Honour, etc. ;
who, after communicating to each other their plenary powers, found
to Be in good and due form, have agreed upon the following terms:
Article I
The frontier between Siam and Cambodia starts, on the left bank of
the GreatLake, at the mouth of the River Stung-Roluos; fromthis point
it follows the parallel towards the easttil it meets the River Prek-
Kompong-Tiam, then, turning towards the north, it foliows the meridian
from this point of meeting as far as the Pnom-Dang-Rek chan of
mountains. Thence it followsthe line of the watershed between the basins
of the Nam-Sen and the Mekong, on one side, and the Nam-Moun, on
the other side,and rejoins the Pnom-Padang chain, the crest of which
it follows to the east as far as the Mekong. Upstream from this point
the Mekong remains the frontierf the Kingdom of Siam, in conformity
with Article1 of the Treaty of the 3rd October1893.
l For original Fretext, see AnnNo. 4 toCounter-Mernoriai,220-223.
[Noteby the Rqislry.] ANNEXES TO PRELIMINARY OBJECTIONS (NO. 1) I5 r
As to the frontier between the right bank of the Luang-Prabang and
the provinces of Muang-Phichai and Muang-Nan, it leaves the Mekong
at its confluence with the Nam-Wuong and, following the thalweg of
this river as far as its confluence with the Nam-Tang, then following the
coiirse of the said Nam-Tang, rejoins the Iine of the watershed between
the basins of the Mekong and the Menm at a point situated close to
Pou-Dcne-lline. From this point it turns towards the north, following
the line of the watershed between the two basins as far as the sources of
the River Nam-Kop, the course of which it follows as far as its meeting
with the Mekong.
Article III
The delimitation of the frontiers between the Kingdom of Siam and
the territories making up French Indo-China will be taken in hand. This
delimitation will be carried out by Mixed Commissions comprised of
officers appointed by the two contracting countries. The work will be
concerned with the frontier laid down by Articles 1and II, as well as the
region lying between the Great Lake and the sea.
In order to facilitate the work of the Commissions and to avoid al1
possibility of difficulty in the dclimitation of the region lying between
the Great Lake and the sea, the two Governmentç will reach an agree-
ment, before the nomination of the Mixed Commissions, for fixing the
chief points of the delimitation in this regioii, particularly the point
where the frontier shall reach the sea.
The hlixed Commissions will be appointed and will begin their work
within four rnonths after the ratification ofthe present Convention.
ArticleIV
The Siamese Government gives up al1 claim to sovereignty over the
territories of Luang-Prabang lying on the right bank of the Mekong.
Merchant ships and rafts of timber belonging to Siamese shall have
the right of navigating freely that part of the Mekong traversing the
territory of Luang-Prabang.
Article V
Irnrnediately the agreement mentioned in Article III, paragraph 2.
relating to the delimitation of the frontier between the Great Lake and
the sea, has been reached, and irnmediately the French authorities have
been officially informed that the territories resulting frorn this agreement
and the territories lying to the east of the frontier, as it is laid down in
Article 1 and II of the present Treaty, are at their disposition, the
French troops which are in provisional occupation of Chantaboun, by
virtue of the Convention of the 3rd October, 1893, will leave that town.
[The remainiq articlesof the Treaty are nof relevant tu this case.] ANNEXES TO PRELIMINARY OBJECTIONS (?JO2)
Annex 2
MAP OF THE BOUNDARY ZN THE DISPUTED AREA, DRAWN
BY THE ROYAL SURVEY DEPARTMENT OF THE THAI RIINIS-
TRY OF DEFENCE.
[Nok reproducein thieditioa]
Preliminary Objections of the Government of Thailand