In 1962, Cambodia and Thailand had an important border dispute between both states addressed by the International Court of Justice. The case concerned whether a particular temple belonged to Cambodia or to Thailand.  

It thus became known as The Case of the Temple at Preah Vihear.  The court found that Cambodia had title to the temple on the basis that Thailand’s actions had recognised Cambodia’s sovereignty over the relevant area.

ESTOPPEL

Two actions proved decisive in the Temple Case. First, Cambodia sent a map of the temple area to Thailand, indicating that the temple belonged to Cambodia. Thailand expressed its gratitude for the map, and did not protest about it. Secondly, a leader of Thailand visited the temple and accepted the hospitality of the Cambodian (French) authorities during the visit. Thailand was estopped from denying Cambodian title over the temple. 

Now, the approach taken by the court in the Temple Case was convincing enough, but it may not be readily replicated. This is so because most countries with territorial claims are not likely to lose their claims through inadvertence, as Thailand appears to have done. 

Also, it should be emphasised that cases concerning title to territory for states usually turn on factors other than estoppel. These rules include: the right of self-determination of peoples, the concept of uti possidetis, certain so-called traditional modes of acquiring title, and the general idea of effective control over territory in dispute. 

Finally, return to the colourful shirt of my title. State A has a claim over a large area of land called, say, Zutupec, which is rich in resources, but it is also claimed by State B. State B is currently in control of Zutupec.  

The prime minister of State A visits State B wearing a shirt stating “Zutupec belongs to State A”. The president of State B observes: “Prime Minister, I admire your sartorial elegance; where can I get one of these shirts?”

The prime minister pulls out a second shirt with the same message and gives it to the president of State B. The prime minister adds: “This confirms that Zutupec belongs to my State (A)”.

“Yes, thank you,” replies the president of State B.

Applying the estoppel principle from the Temple Case, the president of State B could lose more than his shirt.  

Be careful, CARICOM – not a blade of grass!

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