[Lee Jae-min] To err is human, but not granted

What would it be like to watch a live broadcast of a court decision on a highly political territorial dispute with another country? Just ask those who are in Bangkok and Phnom Penh. As the critical decision on the 100-year-old Thai-Cambodian territorial dispute was being rendered two weeks ago by the U.N.’s International Court of Justice in The Hague, the two nations were holding their breath.

This proceeding, a sequel to the 1962 dispute between the two at the same court, concerns an 11th century Hindu temple called Preah Vihear located at the border between the two countries. Again, in the Nov. 11 judgment, the judges sided with Cambodia in material respects, although some of its claims were rejected.

Interestingly, for a long time this dispute has been associated with the term “error”: the consequence of inadvertent errors committed in the course of the negotiation and implementation of a treaty. The whole thing dates back to 1904 when Siam (as it was then called) and France (on behalf of Cambodia) negotiated and concluded a boundary delimitation agreement.

According to the agreement, the Preah Vihear temple was supposed to belong to Thailand. In fact, this temple sits atop a cliff which is only accessible from the Thai side of the border.

Then came a twist. One of the four French officials working to draw the border demarcation line made an apparent mistake and put the temple on the Cambodian side. Oddly, Thailand did not take issue with the situation, at least not officially, even after the mistake was known to the country.

In their 1962 judgment, the judges put more emphasis on this 50-year absence of protest by Thailand than on the original agreement and the inadvertent errors, and ruled for Cambodia. Jurisprudence basically teaches that a country is stopped from citing an error in dealing with other countries if a remedial action is not taken promptly once it is known.

In yet another ICJ dispute, between Singapore and Malaysia in 2008 over the island called Pedra Branca in the Singapore Strait, it was a short letter from 1953 that determined the ultimate fate of case. The court confirmed Malaysia’s original title to the islet, but pointed out that the title was given up in a letter of 1953 from the then ruling government of Malaysia to the British colonial government in Singapore.

In fact, the letter was composed of only seven lines and acknowledged the ownership of the islet by Singapore. Noting the original, historic title of Malaysia to the islet, this short letter was apparently drafted by mistake, whatever had caused it.

These examples tell us that sometimes errors do take place even in the most important business of nations ― treaty negotiations and interactions with other governments. These errors are not to be taken back easily and create their own legal consequences for the future.

After all, to err is so human and sometimes making an error is just inevitable. But the distance and separation between countries on the international plane will not necessarily allow one party to shrug off a mistake. We can see that international adjudicators have not always been kind about mistakes and errors. These examples also show that once a mistake is found all efforts should be mobilized, despite some embarrassment, to correct it as promptly as possible.

For all countries, a myriad of international negotiations are taking place all over the world as we speak. Promises are given and documents exchanged in various contexts. It may be a small mistake or error of today that will determine the fate of a critical issue of a country in the future.

By Lee Jae-min 

Lee Jae-min is an associate professor of law at Seoul National University. ― Ed.