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UP Law F2021

08-01 Request for Interpretation of the Judgment in Cambodia v. Thailand (Temple of Preah Vihear)

Public International Law

Arts. 59 and 60, ICJ Statute [See Art. 38(1)(d) thereof]

2013

President TOMKA; VP SEPÚLVEDA-AMOR; Judges OWADA, ABRAHAM, KEITH, BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE, YUSUF, GREENWOOD, XUE, DONOGHUE, GAJA, SEBUTINDE, BHANDARI; Judges ad hoc GUILLAUME, COT

SUMMARY The ICJ ruled in 1962 that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and ordered Thailand to withdraw military/police personnel from the area. However, there still existed a dispute insofar as what the extent was of the area over which Cambodia has sovereignty and from which Thailand must withdraw its personnel. Such dispute culminated in armed clashes at the border. Cambodia eventually requested the ICJ to clarify and interpret the 1962 Judgment. The ICJ, considering the evidence available to the court in 1962, ruled that Cambodia had sovereignty over the whole territory of the Preah Vihear promontory and, as such, it is this area that Thailand is required to withdraw its personnel from.

SUBSTANTIVE FACTS 1

to withdraw its personnel from. SUBSTANTIVE FACTS 1  The Temple of Preah Vihear is situated

The Temple of Preah Vihear is situated on a promontory 2 in the eastern portion of the Dangrek mountain range, which generally constitutes the border between Cambodia and Thailand.

In 1904, France (under which Cambodia was, before its independence) and Siam (as Thailand was then called) entered into a boundary treaty (“1904 Treaty”), which established that the border in the eastern Dangrek region was to follow a certain watershed line. The 1904 Treaty provided that the exact course of the border was to be determined by a French-Siamese Mixed Commission, consisting of French and Siamese members.

The final stage of the operation was the preparation and publication of maps. In one of these maps (Annex 1 Map), the border line passed to the north of Preah Vihear, thus leaving the Temple in Cambodia.

Cambodia instituted proceedings against Thailand on October 1959.

After judging that it had jurisdiction to entertain the dispute, the ICJ rendered a Decision on 15 June 1962 (1962 Judgment), stating that the subject of the dispute was confined to a difference of view about sovereignty over the region of the Temple of Preah Vihear.

The dispositive portion of the decision consisted of 3 paragraphs, as follows:

The Court, (1) by nine votes to three, finds that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia; finds in consequence, (2) by nine votes to three, that Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory; (3) by seven votes to five, that Thailand is under an obligation to restore to Cambodia any objects of the kind specified in Cambodia's fifth Submission which may, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities.(emphasis supplied)

After the judgment, Thailand erected a barbed wire fence following a line unilaterally determined by a Thai Council of Ministers (Thai Council of Ministersline), purportedly in accordance with the 1962 Judgment. In a subsequent visit to the Temple by the Head of State of Cambodia and other Cambodian officials, they stayed within the area enclosed by the barbed wire fence.

1 Please note that I underlined each of the characters’ names at the first instance that each appeared in the facts; dates, periods, and article numbers (along with some emphasized facts) are in bold letters; and d ocuments are in italics. 2 A high area of land or rock that sticks out into the sea

In 2007, Cambodia requested that the UNESCO World Heritage Committee inscribe the site of the Temple of Preah Vihear on the World Heritage List. A map depicting the site of the property was attached, which showed that the entire promontory of Preah Vihear, as well as the hill of Phnom Trap, (immediately west of such promontory) was within Cambodian territory.

Thailand contested the map, submitting its own map bearing the Thai Council of Ministersline.

The World Heritage Committee inscribed in 2008 the site of the Temple on the World Heritage List, but excluded the disputed area between Cambodia and Thailand. Thereafter, a number of armed incidents took place in the border area close to the Temple, prompting the UN Security Council to call for a permanent ceasefire.

On 28 April 2011, Cambodia filed a Request for Interpretation of the 1962 Judgment.

RATIO

ISSUE # 1A: W/N the ICJ has jurisdiction over the Request?YES If YES to ISSUE # 1A: ISSUE # 1B: W/N such Request is admissible?YES

(Note: The ICJ STATUTE provision assigned, Article 59, is mentioned only once in the text and was even just in passing [see paragraph 44 of the decision].)

ISSUE # 1A Article 60 of the ICJ Statute provides that The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.Thus, there must be a dispute, defined by the ICJ in its previous decisions 3 as a difference of opinion or views between the parties as to the meaning or scope of a judgment rendered by the Court.Further, this dispute must be regarding the dispositive portion of the judgment in question and not the reasons for the judgment, except insofar as these are inseparable from the dispositive or constitute a condition essential to the courts decision. 4

The presence of a dispute is shown, according to the Court, by the following:

1. Cambodias protests against Thailands unilateral determination of the vicinity of the Temple(as shown by the barbed wire fence put up by Thailand) as being contrary to the 1962 Judgment;

2. Thailands protest over the map Cambodia submitted to the World Heritage Committee;

3. Series of armed incidents in the border close to the Temple;

4. Cambodias complaint with the UN about the alleged incursions of Thai forces into Cambodian territory in the area of the Temple.

And according to the court, the dispute involves 3 aspects:

A. ISSUE # 3: W/N the 1962 Judgment decided with binding force that the line depicted on the Annex 1 Map constitutes the border between Cambodia and Thailand in the area of the Temple;

B. ISSUE # 2: [The only dispute resolved in this case by the ICJ] W/N the meaning and scope of vicinity on Cambodian territory” in the 2 nd Dispositive Paragraph and of territory under the sovereignty of

Cambodiain the 1 st Dispositive Paragraph must be understood with reference to the Annex 1 Map line;

CAMBODIA asserts that the Annex 1 Map line was essential to the Courts determination that the Temple is situated in territory under the sovereignty of Cambodia;

THAILAND counters that it is not; rather, vicinityand territorynot being defined by the Court must be confined only to the Temple and its immediate surroundings.

C. ISSUE # 4: W/N the nature of the obligation imposed on Thailand to withdraw is of a continuing nature.

CAMBODIA contends that this obligation is continuing in character, in line with the general principle of respect for territorial sovereignty and integrity of States.

THAILAND counters that it had fully performed this obligation by withdrawing from the vicinity of the Temple.

3 See paragraph 33 of the full text.

4 See paragraph 34 of the full text.

ISSUE # 1B The process of interpretation is premised upon the principle of res judicata. As held by the ICJ in previous decisions 5 , the real purpose of the request must be to obtain clarification of the meaning and scope of the judgment, and not to obtain an answer to questions not so decided, which is a necessary consequence of Article 60 of the ICJ Statute that says the judgment is final and without appeal.

The court thus ruled that Cambodias Request is admissible because Cambodia is merely asking for an interpretation of the dispositive portion of the 1962 Judgment and its legal effect.

ISSUE # 2: W/N the meaning and scope of vicinity on Cambodian territory” in the 2 nd Dispositive Paragraph and of territory under the sovereignty of Cambodiain the 1 st Dispositive Paragraph must be understood with reference to the Annex 1 Map lineYES

Cambodias arguments

Thailands arguments

The court’s determination that the Annex 1 Map line constituted the border between the two countries is essential for the court’s finding that the Temple was situated in territory under the sovereignty of Cambodia.

Thus, the territory” and “vicinity” referred to in the 1 st and 2 nd Dispositive Paragraphs, respectively, extend beyond the Temple and immediate surroundings, and include the (1) whole promontory of Preah Vihear and (2) the hill of Phnom Trap.

The Annex 1 Map was used as evidence only for determining whether the Temple lay under Cambodian sovereignty, and not for defining the boundary between the two countries.

At any rate, the Annex 1 Map was only one of the reasons of the court in deciding in that manner. Other reasons include the visit by Prince Damrong of Thailand to the Temple, which the court said was recognition by Thailand of Cambodia’s sovereignty.

The court merely decided that Cambodia had sovereignty over the small parcel of land on which the Temple is located, and did not pronounce on sovereignty over the rest of the Preah Vihear promontory or the hill of Phnom Trap.

Thus, the vicinityshould include only the area defined by the Thai Council of Ministers (the Temple and its immediate surroundings).

First, the court pointed out that the Annex 1 Map played a central role in the reasoning of the court, The ICJ had ruled that the Annex 1 Map was indeed adopted by the parties, especially on Thailand’s part, as shown by their conduct. One particular example was the visit of Prince Damrong of Thailand to the Temple, which was held by the court as tacit recognition by Siam of the sovereignty of Cambodia.

However, the dispute in the 1962 Judgment was limited to the sovereignty in the region of the Temple of Preah Vihear,and not to the whole area included in the Annex 1 Map. Also, the issue before the court in the original proceedings concerned territorial sovereignty over the area in which the Temple was located, and not delimitation of the border between the two countries.

The court then proceeded to interpret the 3 dispositive paragraphs as a whole, starting with the 2 ND

DISPOSITIVE PARAGRAPH

The court initially considered the evidence presented before the court in 1962 upon which it based its judgment. The court found that such evidence consisted only of a certain Prof. Ackermanns testimony. He relayed that the only people he saw at the Temple when he visited was a detachment of Thai border police and one Temple guard.

Thus, when the court required Thailand to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory,the court must have intended such obligation to apply to the police detachment because, except for the Temple guard, there were no other Thai personnel anywhere near the Temple.

Therefore, the term vicinity on Cambodian territoryhas to be interpreted as extending at least to

5 See paragraph 55 of the full text.

the area where the police detachment was stationed at the time of the original proceedings. This is confirmed by the fact that the Temple is located on an easily identifiable geographical feature: a promontory. Going further, the court then held that a natural understanding of the concept of vicinityof the Temple would extend to the whole territory of the Preah Vihear promontory, extending north as far as, but no further than, the Annex 1 Map line.

Thailands claim is incorrect because the police detachment was actually to the north of the Thai Council of Ministersline, and thus encroached upon Cambodia. On the other hand, Cambodias claim was likewise incorrect for being too broad for including the hill of Phnom Trap, not because of any pronouncement in the 1962 Judgment that Phnom Trap was part of Thailand, but only that there was no evidence that there were any Thai military or police at that area.

Stated differently, the 2 nd Dispositive Paragraph is interpreted to require Thailand to withdraw any Thai personnel from the whole territory of the promontory of Preah Vihear. (The court then proceeded to state the limits of such promontory, in paragraph 98.)

Meanwhile, the obligations imposed under the 2 nd and 3 rd Dispositive Paragraphs were stated to be a consequenceof a finding under the 1 st Dispositive Paragraph. These obligations would rightfully be a logical consequenceof the finding of sovereignty under the 1 st Dispositive Paragraph only if the territory referred to in the 1 st Dispositive Paragraph corresponded to the territory referred to in the 2 nd and 3 rd Dispositive Paragraphs.

Therefore, in light of the above interpretation of vicinityin the 2 nd Dispositive Paragraph as referring to the whole promontory, the court concluded that the territorial scope of the 3 dispositive paragraphs was the same: the whole territory of the Preah Vihear promontory. (as limited by paragraph 98 of the full text)

ISSUE # 3: W/N the 1962 Judgment decided with binding force that the line depicted on the Annex 1 Map constitutes the border between Cambodia and Thailand in the area of the Temple and ISSUE # 4: W/N the nature of the obligation imposed on Thailand to withdraw is of a continuing natureNOT ANYMORE ADDRESSED by the court

The other disputes were not anymore addressed by the court because:

a. (regarding Issue # 3) the only issue in dispute in 1962 was sovereignty over the promontory of Preah Vihear and not over any area beyond this;

b. (regarding Issue # 4) Thailand has accepted that it has a general and continuing legal obligation to respect the integrity of Cambodian territory.

The Court votes unanimously in:

FALLO

1. Finding that it has jurisdiction under Article 60 of the Statute to entertain the Request for interpretation of the

1962 Judgment presented by Cambodia, and that this Request is admissible;

2. Declaring that, by way of interpretation, that the Judgment of 15 June 1962 decided that Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear, as defined in paragraph 98 of the present judgment, and that, in consequence, Thailand was under an obligation to withdraw from that territory the Thai military or police forces, or other guards or keepers, that were stationed there. (emphasis supplied)

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, 11 November 2013, in 3 copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Kingdom of Cambodia and the Government of the Kingdom of Thailand, respectively.

Signed by:

Separate Opinion: Judge CANÇADO TRINDADE

Joint Declaration appended:

Separate Declarations appended:

President TOMKA and Registrar COUVREUR

Judges OWADA, BENNOUNA and GAJA

Judges ad hoc GUILLAUME and COT