Thailand has argued that in the absence of any delimitation approved and adopted by the Mixed Commission, or based on its instructions, the line of the frontier must necessarily - by virtue of Article I of the Treaty of 1904 - follow strictly the line of the true watershed, and that this line, at Preah Vihear, would place the Temple in Thailand. While admitting that the Mixed Commission had a certain discretion to depart from the watershed line in order to avoid anomalies, and to take account of certain purely local considerations, Thailand contends that any departure such as to place Preah Vihear in Cambodia would have far exceeded the scope of any discretionary powers the Mixed Commission could have had authority to exercise without specific reference to the Governments.

Whatever substance these contentions may have, taken by themselves, the Court considers that they do not meet the real issues here involved. Even if there was no delimitation of the frontier in the eastern sector of the Dangrek pproved and adopted by the Mixed Commission, it was obviously open to the Governments themselves to adopt a delimitation for that region, making use of the work of the technical members of the Mixed Commission. As regards any departures from the watershed line which any such delimitation embodied - since, according to Thailand's own contention, the delimitation indicated on the Annex 1 map was not the Mixed Commission's - there is no point in discussing whether such departures as may have occurred at Preah Vihear fell within the Commission's discretionary powers or not. The point is that it was certainly within the power of the Governments to adopt such departures.

The real question, therefore, which is the essential one in this case, is whether the Parties did adopt the Annex 1 map, and the line indicated on it, as representing the outcome of the work of delimitation of the frontier in the region of Preah Vihear, thereby conferring on it a binding character.

Thailand denies this so far as she is concerned, representing herself as having adopted a merely passive attitude in what ensued. She maintains also that a course of conduct, involving at most a failure to object, cannot suffice to render her a consenting party to a departure at Preah Vihear from the watershed line specified by Article I of the Treaty of 1904, so great as to affect the sovereignty over the Temple area.

The Court sees the matter differently. It is clear from the record that the publication and communication of the eleven maps referred to earlier, including the Annex 1 map, was something of an occasion. This was no mere interchange between the French and Siamese Governments, though, even if it had been, it could have sufficed in law. On the contrary, the maps were given wide publicity in all technically interested quarters by being also communicated to the leading geographical societies in important countries, and to other circles regionally interested; to the Siamese legations accredited to the British, German, Russian and United States Governments; and to all the members of the Mixed Commission, French and Siamese. The full original distribution consisted of about one hundred and sixty sets of eleven maps each. Fifty sets of this distribution were allocated to the Siamese Government. That the Annex 1 map was communicated as purporting to represent the outcome of the work of delimitation is clear from the letter from the Siamese Minister in Paris to the Minister of Foreign Affairs in Bangkok, dated 20 August 1908, in which he said that "regarding the Mixed Commission of Delimitation of the frontiers and the Siamese Commissioners' request that the French Commissioners prepare maps of various frontiers, the French Commissioners have now finished their work". He added that a series of maps had been brought to him in order that he might forward them to the Siamese Minister of Foreign Affairs. He went on to give a list of the eleven maps, including the map of the Dangrek region - fifty sheets of each. He ended by saying that he was keeping two sheets of each map for his Legation and was sending one sheet of each to the Legations in London, Berlin, Russia and the United States of America.

Part 10