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Of International Law, Semi-colonial Thailand, and Imperial Ghosts

  • Prabhakar SINGH (a1)
Abstract

I argue that contextually reading two disputes involving Siam—Cheek v. Siam (1898) and the Temple of Preah Vihear (1962)—proves that both private law and public international law are structurally rigged against ex-semi-colonial nations. Nineteenth-century Siam was a political ferment known variously as a semi-colonial, semi-peripheral, non-colonial, or uncolonized polity. Siam bargained under imperial shadows her political independence by the tactical grants of concession contracts, as well as by negotiating treaties with competing European powers. In the post-colonial Temple of Preah Vihear case, colonial stationery—maps, photographs, and communiqués—as well as imperial customs offered evidentiary support to Cambodia, an ex-colonial state, against Thailand. In the early twentieth century, while authors picked Cheek v. Siam as a precedent for the law of international claims, textbooks offer the Temple of Preah Vihear case as a precedent on the form of treaties and estoppel. Conclusively, these two cases allow us to locate, if not exorcise, the ghosts of empires in Asian legal history, exposing, at the same time, Judge Koo’s Orientalization of customary international law.

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Associate Professor and Executive Director, Centre for International Legal Studies, Jindal Global Law School, India. I read evolving drafts at Yale, New York, Harvard, Chiang Mai, and Jawaharlal Nehru Universities. Nikolas Rajkovic and Teemu Ruskola gave useful suggestions at the IGLP Regional Workshop, January 2017, in Bangkok. Benedict Kingsbury, Nathaniel Berman, and Karin Loevy offered constructive remarks at the NYU Institute of International Law and Justice’s Workshop on “Territoriality in the History of International Law”. I gave this paper as a public lecture at the Nehru Memorial Museum & Library, the Ministry of Culture, Government of India, Teen Murti House, New Delhi on 27 April 2018. I am deeply grateful to Gudmundur Eiriksson, Abhimanyu George Jain, and Jean-Rémi de Maistre for detailed and insightful comments. Vasudev Devdasan and Shravani Joshi Sameer offered excellent research assistance. This paper prefigures my work-in-progress monograph Semicolonialism, Sovereignty, and the Universalization of International Law.

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1. “Letter of Gustave Rolin-Jaequemyns to his Son, 27 June 1894” in TIPS, Walter, Gustave Rolin-Jaequemyns and the Making of Modern Siam (Bangkok: White Lotus, 1996), 74 .

2. “Letter of Rolin-Jaequemyns to King Chulalongkorn”, 11 November 1898, ibid., at 137.

3. SUCHARITKUL, Sompong, “Asian Perspectives of the Evolution of International Law: Thailand’s Experience at the Threshold of the Third Millennium” (2002) 1 Chinese Journal of International Law 527 . HELL, Stefan, Siam and the League of Nations: Modernisation, Sovereignty and Multilateral Diplomacy, 1920–1940 (Bangkok: River Books, 2010) notes: some “acknowledge Siam’s League membership in passing, but do not elaborate on what this membership meant”. Sucharitkul’s rich text on Thailand captures five centuries of Siamese experience with international law, albeit without mentioning the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, [1962] I.C.J. Rep. 6. Sucharitkul says that “Thai” is a name older than Siam.

4. Admission of Siam to Membership in the United Nations, UNGA Resolution A/RES/101(I), UN Doc A/264, 67th Plenary Meeting (15 December 1946) 1458.

5. GALLAUDET, Edward, A Manual of International Law (New York: S. Barnes & Co., 1879) 159 . 5 “[S]o small a power as Siam”. Memorandum of Consul E.H. French of the British Legation, Bangkok, 9 November 1893, F.O. 17/1186, para. 2. OPPENHEIM, Lassa, International Law: A Treatise, vol. 1: Peace (Bombay: Longmans, Green, & Co., 1905) 33, 148 : Siam is a “doubtful” state. Smith called Siam a “Partially civilized state”. SMITH, Frederick, International Law, 5th ed. (London/Toronto: Dent & Sons, 1918) 81 . For Westlake, “Siam and China” were examples of states where “the international society exercises the right of admitting states to parts of its law without admitting them to the whole of it”. WESTLAKE, John, International Law, Part 1: Peace (Cambridge: Cambridge University Press, 1910) 40 . DeWITT DICKINSON, Edwin, Equality of States in International Law (London: Harvard University Press, 1920) 355 : Siam is a “Secondary power”. After all, “[r]ecognition is never immediately forthcoming, Hegel repeated, and if a collection of people is to gain it, they must first fight for it”. RINGMAR, Erik, “The Relevance of International Law: A Hegelian Interpretation of a Peculiar Seventeenth-Century Preoccupation” (1995) 21 Review of International Studies 87 at 96.

6. In its written submission to the ICJ in the Kosovo case, the People’s Republic of China made reference to “colonial rule and foreign domination”. “Written Statement of China to the International Court of Justice on the Kosovo Issue” (2009) 3, online: ICJ <http://www.icj-cij.org/files/case-related/141/15611.pdf>. Judge Xue, China’s ambassador to the Netherlands a year before the Kosovo affair, is putative author of the letter to the ICJ. XUE Hanquin, “Cultural Element in International Law”, Melland Schill Lecture, University of Manchester (5 May 2016) at 5, spoke of “colonial rule and foreign domination” verbatim again.

7. “[I]n the far East, the French and the English consolidated their position and advanced towards each other to meet at a point which was called Siam.” Baron Edouard ROLIN-JAEQUEMYNS, Foreword, in Tips, supra note 1 at xi.

8. While Japan went for “defensive modernization”, geopolitics compelled the Siamese state to pursue a strategy of “defensive underdevelopment”. LARSSON, Tomas, “Western Imperialism and Defensive Underdevelopment of Property Rights Institutions in Siam” (2008) 8 Journal of East Asia Studies 1 .

9. Oppenheim, supra note 5 at 157, saying: “Siam, and Tibet are for some parts only within that family [of Nations].” Kingsbury has defended and appraised Oppenheim’s textbook in two seminal papers. KINGSBURY, Benedict, “Sovereignty and Inequality” (1998) 9 European Journal of International Law 599 ; KINGSBURY, Benedict, “Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law” (2002) 13 European Journal of International Law 401 .

10. Editorial, “British Extraterritorial Jurisdiction in Siam” (1909) 3 American Journal of International Law 954 . HOROWITZ, Richard, “International Law and State Transformation in China, Siam, and the Ottoman Empire During the Nineteenth Century” (2004) 15 Journal of World History 445 , noted the universalization of international law as a “joint enterprise”: “The integral part played by extra-European events, actors, or practices needs to be incorporated into our understanding of modern state formation.” BRANCH, Jordan, “‘Colonial Reflection’ and Territoriality: The Peripheral Origins of Sovereign Statehood” (2010) 18 European Journal of International Relations 277 at 280.

11. In the twentoeth century, while the Montevideo Convention lists the four essential characteristics for a state, there are no international laws on state recognition but only two competing theories: constitutive and declaratory. See art. 1, Montevideo Convention on the Rights and Duties of States (1933) 165 L.N.T.S. 19 (entered into force 26 December 1934). Naturally, the subject of state recognition has had an ample purchase with publicists. See the two leading texts: LAUTERPACHT, Hersch, Recognition in International Law (Cambridge: Cambridge University Press, 1947), and CRAWFORD, James, The Creation of States in International Law (Oxford: Clarendon Press, 1979). KINGSBURY, Benedict, “Whose International Law? Sovereignty and Non-State Groups” (1994) 88 ASIL Proceedings 1 .

12. Dissent of Wellington Koo, in the Temple of Preah Vihear case, supra note 3 at 91, para. 34.

13. OSTERHAMMEL, Jürgen, “Semi-Colonialism and Informal Empire in Twentieth-Century China: Towards a Framework of Analysis” in Wolfgang MOMMSEN and Jürgen OSTERHAMMEL, eds., Imperialism and After: Continuities and Discontinuities (London: Allen Lane, 1986), 290 at 308.

14. Indochinese “states derive their civilisation from India but fall within the political orbit of China”. FURNIVALL, John Sydenham, “The Tropical Far East And World History” (1952) 39 Journal of the Siam Society 119 at 120.

15. VANDERGEEST, Peter and LEE PELUSO, Nancy, “Territorialization and State Power in Thailand” (1995) 24 Theory and Society 423 .

16. Ibid.

17. Ibid. In the nineteenth century “civilized nations” meant the legal system of a nation provides protection—economic and physical—to aliens and citizens alike. For Asian polities, having such a system became imperative for political independence. Thus, for Siam, internal legal reform became the basis for the revision on unequal treaties. Tokichi MASAO, “The New Penal Code of Siam” (1908) 18 Yale Law Journal 85. “[I]t is not to be denied that the existence of a legal system is a primal condition of statehood.” SHEARER, Ivan, Starke’s International Law, 11th ed. (New Delhi: Oxford University Press, 1994) 86 .

18. Ibid., 424. A comparison between the Phra Yot (France/Siam) dispute and the Savarkar cases (France/Great Britain) instructively reveals the distinctions the Europeans made between intra-European and European-Asian relations. In the Arrest and Return of Savarkar case, Award (24 February 1911), 4, online: PCA<https://pca-cpa.org/en/cases/79.pdf>, a Permanent Court of Arbitration tribunal found France’s “defective extradition“ not in violation of international law. In contrast, with minimal legal procedure, Phra Yot was tried twice to be awarded a death sentence.

19. For example, even Sucharitkul’s seminal paper on Thailand notes that “the Celestial Empire, China, suffered the most painful and the least tolerable fate with the most indelible injurious consequences”. Sucharitkul, supra note 3 at 533. “Semi-colonialism”, “foreign domination”, and “joint-enterprise” are some of the words used to describe the political situation of China, Ethiopia, and Siam in the interwar years that post-colonial lawyers conflated with colonialism. While Asia is often inaccurately presented as a homogeneously colonized continent, the distinction between the nature of the Japanese and European semi-colonialism is the new area of study pioneered by historian DUARA, Prasenjit, Sovereignty and Authenticity: Manchukuo and the East Asian Modern (Lanham: Rowman & Littlefield, 2003) 91 . Judge Koo found the League’s failure to prevent Japanese imperialism in China pivotal to the League’s death. CRAFT, Stephen, “Saving the League: V.K. Wellington Koo, the League of Nations and Sino‐Japanese Conflict, 1931–39” (2000) 11 Diplomacy & Statecraft 91 . Subsequently Ethiopia’s semi-colonial situation caught the attention of scholars. ALLAIN, Jean, “Slavery and the League of Nations: Ethiopia as a Civilized Nation” (2006) 8 Journal of the History of International Law 213 at 221. FITZMAURICE, Andrew, “Liberalism and Empire in Nineteenth-Century International Law” (2012) 117 American Historical Review 122 at 131. The study of Japan, China, and Ethiopia, although to the exclusion of Siam, has inspired a general study of interwar years. WHEATLEY, Natasha, “Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State” (2017) 35 Law & History Review 753 .

20. In cases involving Asian states, the ICJ has “avoided assessing the quality of territorial control by states, which is at the heart of the difficulties of the law of territory in the post-colonial era”. HUH, Sookyeon, “Title to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan (2002) and Pedra Branca (2008)” (2015) 26 European Journal of International Law 709 at 712. But the frontiers of states “need not be established beyond dispute”. SHAW, Malcolm, “Territory in International Law” (1982) 13 Netherlands Yearbook of International Law 61 . “[T]erritory requirement … is not necessarily essential to the continued existence of an established state.” GEORGE JAIN, Abhimanyu, “The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory” (2014) 50 Stanford Journal of International Law 1 at 51.

21. Xue, supra note 6 at 5.

22. “The weight of documentation does not necessarily correspond to the weight of the arguments.” BEDJAOUI, Mohammed, “The ‘Manufacture’ of Judgments at the International Court of Justice” (1991) 3 Pace Yearbook of International Law 29 at 37.

23. Franco-Siamese Treaty 1904, art. 6, para. 2.

24. Ibid.

25. Ibid., para. 3.

26. Letter of John Westlake to Rolin-Jaequemyns, 20 January 1893, in Tips, supra note 1 at 23.

27. This explains the dominance of men, mostly white, from France and England—two countries that colonized most of the world—in litigations before international courts and tribunals. There is now a shift to Americans, albeit men again, with the arrival of law firms. DEZALAY, Yves and GARTH, Bryant, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago: Chicago University Press, 1996) 63 . The Reinterpretation of Preah Vihear litigation was televised in Thailand. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) Judgment, [2013] I.C.J. Rep 281. To Counsel Alain Pellet, the Thai people appreciated the lengths to which the Thai government had gone to make a case for the Temple ownership, and Thai people on the street could recognize Professor Pellet. Email correspondence with Alain Pellet, Université Paris Nanterre, 12 December 2017.

28. CRAWFORD, James and MILES, Cameron, “Four Ways of Thinking about the History of International Law”, in Juan CARLOS SAINZ-BORGO, Helga GUÐMUNDSDÓTTIR, Guðrún D. GUÐMUNDSDÓTTIR, Juan M. AMAYA-CASTRO, Mihir KANADE, Yara SAAB, and Humphrey SIPALLA, eds. Liber Amicorum - In Honour of a Modern Renaissance Man His Excellency Guðmundur Eiríksson (Gurugram: LexisNexis, 2017) 288 .

29. Maps are not determinative in all cases, however. See Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, [2002] I.C.J. Rep 303. THUO GATHII, James, “Geographical Hegelianism in Territorial Disputes Involving Non-European Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)” (2002) 15 Leiden Journal of International Law 581 . See Need for Greater Use by the United Nations and its Organs of the International Court of Justice, GA Res. A/RES/171(II) A (1947), at 103–4.

30. Marion Cheek (US) v. Siam, 1898, Marjorie M. WHITEMAN, ed., Damages in International Law, Vol. 3 (Washington: US Government Printing Office, 1943) 1646.

31. Temple of Preah Vihear case, supra note 3 at 6.

32. The proponents of “orthodox Marxist historiography” as well the adherents of a “continuity thesis” who “wish to paper over differences between precolonial and colonial political regimes and knowledge systems” today reject both post-colonial Said and post-structural Foucault. SUBRAHMANYAM, Sanjay, Europe’s India: Words, People, Empires: 1500–1800 (London: Harvard University Press, 2017) xii .

33. DUARA, Prasenjit, “The New Imperialism and the Post-Colonial Developmental State: Manchukuo in Comparative Perspective” (2006) 4 Asia Pacific Journal 1 .

34. Ibid.

35. Ibid.

36. Confidential Letter of E. Satow to Lord Salisbury, 25 September 1885, F.O. 69/100.

37. Ibid.

38. Letter of Rolin-Jaequemyns to King Chulalongkorn, undated, in Tips, supra note 1 at 240.

39. Tips, Ibid., at 41.

40. DAUGE, August, “De la condition juridique des étrangers et de l’organisation judiciaire au Siam” (1900) 27 Journal de Droit International Privé 461 . HYDE, Charles Cheney, “The Relinquishment of Extraterritorial Jurisdiction in Siam” (1921) 15 American Journal of International Law 428 . SAYRE, Francis Bowes, “The Passing of Extraterritoriality in Siam” (1928) 22 American Journal of International Law 70 at 79. PARRISH, Austen, “Reclaiming International Law from Extraterritoriality” (2009) 93 Minnesota Law Review 815 at 820.

41. Letter of Westlake to Rolin-Jaequemyns, 10 August 1894, in Tips, supra note 1 at 67.

42. For Syatauw, Japan, China, and the Philippines, on the one hand, and India, Sri Lanka, and Burma, on the other, could not both be part of the same study called “some newly established Asian states” in post-colonial times. SYATAUW, J.J.G., Some Newly Established Asian States and the Development of International Law (Boston/ Leiden: Martinus Nijhoff, 1961) 3 .

43. Ibid., at 3–4.

44. “[F]or the international lawyers, colonial problems constituted a distinct set of issues that were principally not of a theoretical, but rather a political character.” ANGHIE, Antony, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law” (1999) 40 Harvard International Law Journal 3 . This narrative was further strengthened in ANGHIE, Antony, Imperialism, Sovereignty and the Making of International Law (New York: Cambridge University Press, 2005) at 3, where Anghie makes a broad argument that “colonialism was central to the constitution of international law”. BAXI, Upendra, “New Approaches to the History of International Law” (2006) 19 Leiden Journal of International Law 555 .

45. “It was not, as Anghie and others readily accept, merely about subjugation or rule, but about subjugation for a purpose—whether that be to civilize or exploit (or both).” CRAVEN, Matthew, “What Happened to Unequal Treaties? The Continuities of Informal Empire” (2005) 74 Nordic Journal of International Law 335 at 382. While Anghie investigates how the story of colonization and international law is written, Craven is “concerned with examining the way in which the story of decolonisation has been and continues to be told”. CRAVEN, Matthew, The Decolonization of International Law: State Succession and the Law of Treaties (New York: Oxford University Press, 2007) 16 .

46. Building upon Horowitz and Craven, Becker Lorca notes that “international law became universal through semi-peripheral appropriation”. BECKER LORCA, Arnulf, “Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation” (2010) 51 Harvard International Law Journal 475 . See Lauren BENTON and Lisa FORD, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (London: Harvard University Press, 2016). Jennifer PITTS, Boundaries of the International: Law and Empire (London: Harvard University Press, 2018) at 164 seemingly walks the path opened by Becker Lorca and Benton and Ford.

47. For instance, Chinese and Indian scholars made different arguments about international law and its universality. SINGH, Prabhakar, “Sino–Indian Attitudes to International Law: Of Nations, States and Colonial Hangovers” (2015) 3 Chinese Journal of Comparative Law 348 . KRISHNA RAO, K., “The Preah Vihear Case and the Sino-Indian Boundary Question” (1962) 2 Indian Journal of International Law 356 , had argued that the Temple of Preah Vihear case be seen as a binding precedent for the China-India boundary dispute. Given the common Thai and Chinese semi-colonial pasts, Thai scholar Sucharitkul is unsurprisingly also an expert on Chinese scholarship. See Sompong SUCHARITKUL, “Rebirth of Chinese Legal Scholarship, with Regard to International Law” (1990) 3 Leiden Journal of International Law 3.

48. Craven “examine[s] how it was that international lawyers understood decolonization” and “to what extent, ‘newly independent States’ could really assert themselves to be ‘new’”. Craven, supra note 45 at 4. When examined in relation to international law on state succession, O’Connell and Bedjaoui, two opposing protagonists from Australia and Algeria, could not have been more different in their views. “If thus, Bedjaoui set himself against an imperial tradition that he believed to be represented in the work of O’Connnell [sic], O’Connell set himself against the sort of pointless special pleading that happened in the work of Bedjaoui.” Craven, supra note 45 at 84. Absent from Craven’s account is Syatauw’s direct criticism of O’Connell. “However correct and reasonable O’Connell’s point of view may be”, wrote Syatauw, “as a starting point, it simply will not do to say that states are bound at all times by a given system of law without being able to modify it.” SYATAUW, J.J.G., “The Relationship Between the Newness of States and Their Practices of International Law” in Ram Prakash ANAND, ed., Asian States and the Development of Universal International Law (New Delhi/London: Vikas Publishing, 1972), 10 at 14.

49. WYATT, David, Thailand: A Short History (New Haven, CT: Yale University Press, 1984) 181 . McCARTHY, James, “Siam” (1888) 10 Proceedings of the Royal Geographical Society 117 .

50. Editorial, supra note 10 at 954. Cf. “Finding new ways of thinking about ancient states and empires means moving beyond the extremes of ‘statist’ and ‘non-statist’ histories. It means recognizing the existence of ‘autonomous spaces’ within state structures.” SINGH, Upinder, Political Violence in Ancient India (London: Harvard University Press, 2017) 13 .

51. Larsson, supra note 8 at 3, 8.

52. Rolin-Jaequemyns’s Diary Entry, 22 August 1894, in Tips, supra note 1 at 74.

53. Ibid., at 79.

54. “[D]uress, so far as States are concerned, does not invalidate a contract; nevertheless, it is submitted that this exception does not affect … the fundamental identity of contract as treaties.” LAUTERPACHT, Hersch, Private Law Sources and Analogies of International Law: With Special Reference to International Arbitration (Bombay: Longmans, Green & Co., 1927) 161 .

55. NURNNONDA, Thamsook, “The First American Advisers in Thai History” (1974) 62 Journal of the Siam Society 121 at 124. The task was in essence to craft a new and modern Civil and Commercial Code, replacing a number of existing legal and judicial practices. Walter TIPS, trans. & intro., Mr. and Mrs. Jottrand, In Siam: The Diary of a Legal Adviser of King Chulalongkorn’s Government (Bangkok: White Lotus, 1996 [1905]) vii. DE SAINT-HUBERT, Christian, “Rolin-Jaequemyns (Chao Phya Aphay Raja) and the Belgian Legal Advisors in Siam at the Turn of the Century” (1965) 53 Journal of the Siam Society 181 at 187.

56. OBLAS, Peter, “Treaty Revision and the Role of the American Foreign Affairs Adviser 1909–1925” (1972) 60 Journal of the Siam Society 171 .

57. WINICHAKUL, Thongchai, Siam Mapped: A History of the Geo-body of a Nation (Chiang Mai: Silkworm Books, 1995) 106 .

58. Ibid., at 107.

59. Dissenting Opinion of Judge Koo, Temple of Preah Vihear case, supra note 3 at 90, para. 32.

60. Prince Damrong RAJANUBHAB, Our Wars with the Burmese: Thai-Burmese Conflict 1539–1767, U AUNG THEIN, trans., Chris BAKER, ed. (Bangkok: White Lotus, 2001 [1917]) xv. BREAZEALE, Kennon, “A Transition in Historical Writing: The Works of Prince Damrong Rachanuphap” (1971) 59 Journal of the Siam Society 25 .

61. Rajanubhab, ibid., at x.

62. Ibid., at xxxv. Damrong does not escape Winichakul’s scholarly scrutiny, however. Winichakul found that Damrong’s “selective treatment of only the Thai-Burmese wars, and the name of the book itself, were a clever way to frame Thai history which heavily influenced people’s knowledge and interpretation of the past”. Quoted in, Baker, ibid., xiv.

63. Ex-Rajah of Coorg v. East India Company (1860) 29 Beavan 300, 309. In the Nabob of Arcot case, the EIC argued for the power to “enter into federal conventions with the princes or people that are not Christians”. The Nabob of Arcot v. The East India Company (1793) 29 E.R. 841 (Court of Chancery). In John Doe, on the demise of Rajah Seebkristo & Ors v. the EIC, (1856) 140 14 E.R. 445 (Privy Council) it was argued that “By the Hindoo law a verbal grant of real estate is good, if followed by possession by the grantee”.

64. To the extent that studies on Asia and international law are carried out without a conversation with Syatauw, the conflation of Asian colonial and semi-colonial histories continues. CHESTERMAN, Simon, “Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures” (2016) 27 European Journal of International Law 945 .

65. Craven, supra note 45 at 345.

66. Ibid.

67. As historian Sunil Amrith explains: “The Indian shipping industry tumbled in the 1820s: pushed to the margins by the rise of steam technology, squeezed by political pressure from British shipbuilders to restrict entry to Indian ships.” AMRITH, Sunil, Crossing the Bay of Bengal (Cambridge, MA: Harvard University Press, 2013) 81 .

68. MYINT-U, Thant, The River of Lost Footsteps: A Personal History of Burma (London: Faber & Faber, 2008) 12 .

69. BRAILEY, Nigel, “The Scramble for Concessions in 1880s Siam” (1999) 33 Modern Asian Studies 513 at 516.

70. Marion Cheek (US) v. Siam, supra note 30 at 1646. “Arbitration in Siam” The Straits Times (27 December 1897) 2. “41st Session, A/CN.4/SER.A/1989/Add.1(Part 1)” (1989) 2 Yearbook of International Law Commission 20, para. 70.

71. TUCK, Patrick, The French Wolf and the Siamese Lamb: The French Threat to Siamese Independence 1858–1907 (Bangkok: White Lotus, 1995) 181 .

72. Ibid.

73. Grover CLEVELAND, “Arbitration of the Claim of M.A. Cheek against the Siamese Government” in Papers Relating to the Foreign Relations of the United States, with the Annual Message of the President Transmitted to Congress December 6, 1897 (Washington: US Government Printing Office, 1897) at 461.

74. Ibid.

75. Cheek v. Siam Award in BASSETT MOORE, John, History and Digest of the Arbitrations to Which the United States Have Been a Party (Washington: US Government Printing Office, 1898) 1068 .

76. Ibid.

77. Ibid., at 1069.

78. Ibid.

79. “Only those promises which are supported by a legal consideration are legally binding.” ATIYAH, P.S., An Introduction to the Law of Contract, 5th ed. (Oxford: Clarendon Press, 1995) 118 . See SWAMINATHAN, Shivprasad, “Eclipsed by Orthodoxy: The Vanishing Point of Consideration and the Forgotten Ingenuity of the Indian Contract Act 1872” (2017) 12 Asian Journal of Comparative Law 141 .

80. Cheek v Siam, supra note 75 at 1069. Notably, while Waner Sutton noted the Cheek v. Siam case in the very same year, the case found its way into J.B. Moore’s History and Digest. SUTTON, W., “Cheek v. Siam” (1899) 58 Albany Law Journal 53 . By 1915, the Cheek case appeared in Borchard’s The Law of International Claims. BORCHARD, E.M., The Diplomatic Protection of Citizens Abroad: Or, the Law of International Claims (Cleveland: Banks Law Publishing Co., 1925 [1915]) 337 .

81. Tuck, supra note 71 at 181.

82. Ibid., at 181.

83. Ibid., at 182.

84. Ibid., at 183.

85. Judge Guha Roy very poignantly noted: “To the extent to which the law of responsibility of states for injuries to aliens favours such [colonially acquired] rights and interests, it protects an unjustified status quo or, to put it more bluntly, makes itself a handmaid of power in the preservation of its spoils.” GUHA ROY, S.N., “Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?” (1961) 55 American Journal of International Law 863 at 866.

86. Temple of Preah Vihear case, supra note 3 at 8.

87. Ibid., at 14–15.

88. Ibid., at 17.

89. Ibid., at 19–20.

90. Ibid., at 24.

91. Ibid. See GARDINER, Richard, Treaty Interpretation, 2nd ed. (Oxford: Oxford University Press, 2015) 264 .

92. Ibid., at 30.

93. In the Temple of Preah Vihear case, Cambodia’s independence from France notwithstanding, the ICJ did not address the issue of Cambodia’s succession from France. Craven, supra note 45 at 182.

94. “[T]he separate opinions, and even the dissenting opinions, appended to the Judgment are integral with it and cannot be detached from it.” Bedjaoui, supra note 22 at 58.

95. KOO, Wellington, “Letter from the Chinese Delegation to the Secretary-General of the League of Nations, 26 April 1933” (1933) 5 League of Nations Official Journal 6 . Earlier Koo had resisted the legalization at the Permanent Court of International Justice [PCIJ] of the Republic of China’s unilateral revision of the unequal treaty with Belgium. Denunciation of the Treaty of 2 November 1865 Between China and Belgium [1927] PCIJ (Ser. A) No. 8, pp. 4, 5. HSIEH, Pasha L., “Wellington Koo, International Law and Modern China” (2016) 56 Indian Journal of International Law 307 .

96. Koo, ibid.

97. Ibid., at 91.

98. Ibid.

99. In February 1928, Wellington Koo, the then Chinese Minister in Paris, “pledged to try and secure [even] Japan’s support for Siam’s candidature” to the League of Nations’ Council membership. Hell, supra note 3 at 70.

100. Dissenting Opinion of Judge Koo, in Temple of Preah Vihear case, supra note 59 at 80.

101. Case Concerning Right of Passage over Indian Territory, (Merits), Separate Opinion of Judge VK Wellington Koo [1960] I.C.J. Rep. 6 at 54.

102. Dissenting Opinion of Judge Koo, supra note 59 at 75, 90. A germ of such an idea existed in ancient Sino-nomadic relations. “From the nomads’ perspective, the presents to the Chinese could readily be regarded simply as routine acts of courtesy, rather than as a sign of subjection.” NEFF, Stephen, Justice Among Nations: A History of International Law (Cambridge, MA: Harvard University Press, 2014) 40 .

103. Koo, supra note 59 at 80.

104. Colonial stationery, however, doesn’t really capture the practice of planting flags. This is covered by the “oriental” practices and customs. Ibid.

105. Dissenting Opinion of Judge Koo, supra note 59 at 90, para. 33.

106. Ibid., at 84.

107. Winichakul, supra note 57 at 112.

108. Thai cartography emerged from Chinese knowledge wherein the “Chinese paid more attention to their inland waterways than to their seacoast, rarely sending scientific expeditions oceanward”. SALWIDHANNIDHES, Phva, “Study of Early Cartography of Thailand (Siam)” (1952) 50 Journal of the Siam Society 81 at 82. Not that the Europeans were always careful or accurate. GuillAume Delisle, the French father of cartography, confused Bhutan with Tibet in an eighteenth-century map. See Karma PHUNTSHO, The History of Bhutan (Gurgaon: Random House India, 2013) at 13.

109. Dissenting Opinion of Judge Koo, supra note 59 at 89.

110. Ibid.

111. Dissenting Opinion of Judge Moreno Quintana, in Temple of Preah Vihear case, supra note 3 at 67.

112. Ibid., at 68.

113. Ibid., at 69.

114. Ibid., at 70.

115. “An error remains an error and cannot by repetition make good acts of later date that are based upon that error.” Ibid., at 71.

116. Ibid.

117. Dissenting Opinion of Judge Spender, in Temple of Preah Vihear case, supra note 3 at 137.

118. Ibid.

119. Dissenting Opinion of President Owada, in Request for Interpretation, at 561, para. 15, online: <http://www.icj-cij.org/files/case-related/151/151-20110718-ORD-01-01-EN.pdf>.

120. Kautilya (400 BC) is credited with the theoretical exposition of the “the Circle of States” mandala theory. RANGARAJAN, L.N., ed., Kautilya: The Arthasastra (New Delhi: Penguin, 1992) 95 .

121. THAPAR, Romila, The Penguin History of Early India: From the Origins to AD 1300 (New Delhi: Penguin, 2002) 446 .

122. Winichakul, supra note 107 at 84.

123. Ibid., at 88.

124. Dissenting Opinion of Judge Koo, supra note 59 at 93, para. 39.

125. Ibid., at 92, para. 38. Thus, much of the mandala system existed on monetary sovereignty, i.e. tax and revenue collection, rather than exclusive and homogenous control over geographical territory. “[T]he relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter.” PISTOR, Katharina, “From Territorial to Monetary Sovereignty” (2017) 18 Theoretical Inquiries in Law 491 .

126. Instructively enough, Ian Brownlie and Alain Pellet—two of the most doctrinal of European scholars—unsuccessfully made a case for a mandala people-centric “Malay concept of sovereignty” on behalf of Singapore. They argued that the Malay concept of sovereignty “is based mainly on control over people, and not control over territory. Traditional Malay sovereignty is people-centric and not territory-centric.” In any case, the ICJ tried to balance the clash of concepts by noting “that sovereignty comprises both elements, personal and territorial”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, [2008] I.C.J. Rep 12 at 40, paras. 76–9.

127. “The fate of tiny tributaries under dispute remains virtually unknown. Their voices have not been heard. It is as if they occupied a dead space with no life, no view, no voice, and thus no history of their own.” Winichakul, supra note 107 at 96.

128. Vandergeest and Lee Peluso, supra note 15 at 415.

129. Huh, supra note 19 at 710–11.

130. SINGH, Prabhakar, “India Before and After the Right of Passage Case ” (2015) 5 Asian Journal of International Law 176 .

131. Likewise, Krishna Rao had detected the seeds of new imperialism insofar as, for China, the settlement of the boundary with India became a “ripe” question “for solution in 1959”, and not soon after its independence in 1949, “only because China felt that she had an overwhelming strength and could enforce her ‘claim’ by resort to an armed intervention”. Krishna Rao, supra note 47 at 368.

132. Gathii traces the ICJ’s determination of title to disputed islands that “are based on the Eurocentric assumption that only the consent of European states is necessary to adjudicate nineteenth century claims of title to territory to the exclusion of the consent of non-European peoples”. Pre-existing title to territory based on African use and occupation does not count. Gathii, supra note 26 at 581. Cf. “That uti possidetis governs colonial situations is evident, that it extends to all cases of transition to independence has, it is believed, become clear.” SHAW, Malcolm, “Peoples, Territorialism and Boundaries” (1997) 8 European Journal of International Law 478 at 503. MACCORCUDALE, Robert and PANGALANGAN, Raul, “Pushing Back the Limitations of Territorial Boundaries” (2001) 12 European Journal of International Law 867 at 882: “an untangling of territorial boundaries and sovereignty is desirable.”

133. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Provision Order [2011] I.C.J. Rep 537. President Owada, Judges Al-Khasawneh, Xue, Donoghue, and Judge ad hoc Cot all dissented.

134. Dissenting Opinion of Judge Xue, Provisional Measure, ibid., at 608.

135. Reply of the Kingdom of Thailand to the question put to the Parties by Judge Cançado Trindade (7 June 2011), online: <http://www.icj-cij.org/files/case-related/151/17656.pdf>.

136. SHAW, Malcolm, International Law, 6th ed. (Cambridge: Cambridge University Press, 2008) 518 ; KOLB, Robert, Theory of International Law (Portland, OR: Hart Publishing, 2016) 401 . James CRAWFORD, Brownlie’s Principles of Public International law, 8th ed. (Oxford: Oxford University Press, 2012) 420-1.

137. MERRILLS, John, International Dispute Settlement (Cambridge: Cambridge University Press, 2011) 160 .

138. Referring to Judge Fitzmaurice’s Separate Opinion in the Temple of Preah Vihear case, Akehurst’s textbook notes: “[s]ometimes international law insists on the English requirements of reliance and detriment.” MALANCZUK, Peter, Akehurst’s Modern Introduction to International law, 7th ed. (London/New York: Routledge, 1997) 154 .

139. Treaty of Friendship and Commerce between Siam and Great Britain Signed at Bangkok, 18 April 1855, Empire in Asia: A New Global History, online: National University of Singapore <http://www.fas.nus.edu.sg/hist/eia/documents_archive/friendship-treaty.php>.

140. Tuck, supra note 71 at Appendix 2, 263–73.

141. Ibid., at 287–9.

142. Ibid., at 291–5.

143. Ibid., at 297.

144. THAMSOOK, N., “The Angle-Siamese Secret Convention of 1897” (1965) 53 Journal of the Siam Society 45 at 51–2.

145. Vandergeest and Lee Peluso, supra note 15 at 403.

146. Ibid.

147. SUWANNATHAT-PIAN, K., “The 1902 Siamese-Kelantan Treaty: An End to Traditional Relations” (1984) 72 Journal of the Siam Society 95 at 136, Appendix B.

148. Tuck, supra note 140 at 305.

149. Ibid., at 315.

150. Ibid., at 321–3.

151. Thamsook, supra note 144 at 60.

152. Winichakul, supra note 57 at 94.

153. Sucharitkul placed Judge Koo’s dissent in the Temple of Preah Vihear case in perspective: “Judge Koo’s dissenting opinion in regard to the need for Siam to react against France’s aggression on paper by publication of a map with inaccurate boundary line showing the Temple of Phra Vihear to be outside Siam.“ Sucharitkul, supra note 47, at 9.

* Associate Professor and Executive Director, Centre for International Legal Studies, Jindal Global Law School, India. I read evolving drafts at Yale, New York, Harvard, Chiang Mai, and Jawaharlal Nehru Universities. Nikolas Rajkovic and Teemu Ruskola gave useful suggestions at the IGLP Regional Workshop, January 2017, in Bangkok. Benedict Kingsbury, Nathaniel Berman, and Karin Loevy offered constructive remarks at the NYU Institute of International Law and Justice’s Workshop on “Territoriality in the History of International Law”. I gave this paper as a public lecture at the Nehru Memorial Museum & Library, the Ministry of Culture, Government of India, Teen Murti House, New Delhi on 27 April 2018. I am deeply grateful to Gudmundur Eiriksson, Abhimanyu George Jain, and Jean-Rémi de Maistre for detailed and insightful comments. Vasudev Devdasan and Shravani Joshi Sameer offered excellent research assistance. This paper prefigures my work-in-progress monograph Semicolonialism, Sovereignty, and the Universalization of International Law.

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Asian Journal of International Law
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