The Mixed Commission set up under the Treaty of 1904 held its first meeting in January 1905, but did not reach that part of its operations that concerned the frontier along the eastern sector of the Dangrek range until December 1906, although it appears from the minutes of the Commission's meeting of 2 December 1906 that one of the French members of the Commission, Captain Tixier, had passed along the Dangrek in February 1905. At the meeting of 2 December 1906, held at Angkor-Wat, it was agreed that the Commission should ascend the Dangrek from the Cambodian plain by the Pass of Kel, which lies westwards of Preah Vihear, and travel eastwards along the range by the same route (or along the same line) as had been reconnoitred by Captain Tixier in 1905 ("le tracé qu'a reconnu ... le capitaine Tixier"). It was stated that all the necessary reconnaissance between this route and the crest line (to which it ran roughly parallel) could be carried out by this method, since the route was, at the most, only ten to fifteen kilometres from the crest, on the Siamese side. It has not been contested that the Presidents of the French and Siamese sections of the Commission, as representing it, duly made this journey, and that in the course of it they visited the Temple of Preah Vihear. But there is no record of any decision that they may have taken.

At this same meeting of 2 December 1906, it was also agreed that another of the members of the French section of the Commission, Captain Oum, should, starting at the eastern end, survey the whole of the eastern part of the Dangrek range, in which Preah Vihear is situated, and that he would leave for this purpose the next day.

It is thus clear that the Mixed Commission fully intended to delimit the frontier in this sector of the Dangrek and that it took all the necessary steps to put the work of delimitation in hand. The work must have been accomplished, for at the end of January 1907 the French Minister at Bangkok reported to the Minister of Foreign Affairs in Paris that he had been formally notified by the President of the French section of the Mixed Commission that the whole work of delimitation had been finished without incident, and that the frontier line had been definitely established, except in the region of Siem Reap. Furthermore, in a report on the whole work of delimitation, dated 20 February 1907, destined for his own Government, the President said that: "All along the Dangrek and as far as the Mekong, the fixing of the frontier could not have involved any difficulty." Mention may also be made of a map produced by Thailand, recently prepared by the Royal Thai Survey Department, Bangkok, tracing in the Dangrek the "Route followed by the Mixed Commission of 1904".

It seems clear therefore that a frontier was surveyed and fixed; but the question is what was that frontier (in particular in the region of Preah Vihear), by whom was it fixed, in what way, and upon whose instructions? The difficultly in answering these questions lies in the fact that, after the minutes of the meeting of the First Commission on 2 December 1906, there is no further reference whatever, in any minutes of later meetings, to the question of the frontier in the Dangrek region.

It appears that at about this time the Commission had in substance finished its work on the ground and was awaiting the reports and provisional maps of the survey officers (Captain Oum and others). These reports and maps would not be available until Febmary-March 1907 when, in normal circumstances, another meeting of the Commission would have been held to consider them. It appears that a meeting had been provisionally fixed for 8 March.

That it was certainly the intention to call one, can be seen from a despatch from the French Minister in Bangkok to the Minister of Foreign Affairs in Paris, dated 23 February 1907, covering the report from Colonel Bernard, President of the French section of the Commission. The Minister, in his despatch, said: "The maps indicating the frontier can be brought up to date in a fairly short time and the plenary meeting of the French and Siamese Commissioners will probably be held before 15 March." No meeting apparently ever took place. In the meantime the two Governments had entered into negotiations for a further boundary treaty. This treaty was signed on 23 March 1907, and provided for exchanges of territory and a comprehensive regulation of all those frontiers not covered by the previous treaty settlement of 1904.

A second Mixed Commission of Delimitation was then set up under the Treaty of 1907. As already mentioned, part of its task was to delimit that sector of the Dangrek region not having come within the ambit of the First Commission, namely from the Pass of Kel westwards, and therefore not including Preah Vihear which lay to the east. There was in fact some overlapping of the work of the two Commissions in the Kel region, but this overlapping did not extend to Preah Vihear. There is, however, evidence in the records of the Second Commission that, at or near the Pass of Kel, the line drawn by this Commission joined up with an already existing line proceeding eastwards to the Temple area and beyond. There is no definite indication as to what this line was, or how it had come to be established; but the presumption that it was in some manner or other the outcome of the survey work which the First Commission had put in hand, and which the President of its French section, in his report of 20 February 1907, stated to have been accomplished without difficulty is, in the circumstances, overwhelmingly strong. The Court has noted that although, under Article IV of the Treaty of 1907, the task of the Second Mixed Commission was to delimit the "new frontiers" established by that Treaty, the Commission also had the task, under Clause III of the Protocol attached to the Treaty, of delimiting all that part of the frontier defined in Clause I of the Protocol. This latter provision related to the entire Dangrek range from a point in its western half to the eastern continuation of the Dangrek, the Pnom Padang range, as far as the River Mekong. Therefore, had the eastern Dangrek and Pnom Padang sectors not already been delimited by the first (1904) Mixed Commission, it would have been the duty of the second (1907) Commission to do this work. This Commission did not do it, apart from the overlap (not extending to Preah Vihear) already mentioned, and therefore the presumption must be that it had already been done.

Part 8