On 28 April 2011 Cambodia requested the International Court of Justice (ICJ or Court) for an interpretation of its Judgment rendered on 15 June 1962 in the border dispute case concerning the Temple of Preah Vihear (Cambodia v. Thailand) after tensions with Thailand flared up again along that part of the border. Seemingly, we are heading towards a Temple of Preah Vihear Bis. In view of the ongoing armed hostilities in that area, Cambodia also submitted an urgent request for the indication of provisional measures. This post will deal with both requests filed by Cambodia, while drawing extensively from the Court’s press release of 2 May. For more information on this case you can read the application instituting proceedings and the request for provisional measures (in French) and the Court’s press release (in English).
1. The request for interpretation of the 1962 Judgment
In providing a jurisdictional basis for its request Cambodia invoked Article 60 of the Statute of the Court, which reads ‘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.’ Among others Cambodia pointed out that:
“(1) according to Cambodia, the Judgment [rendered by the Court in 1962] is based on the prior existence of an international boundary established and recognized by both States;
(2) according to Cambodia, that boundary is defined by the map to which the Court refers on page 21 of its Judgment …, a map which enables the Court to find that Cambodia’s sovereignty over the Temple is a direct and automatic consequence of its sovereignty over the territory on which the Temple is situated …;
(3) according to the Judgment, Thailand is under an obligation to withdraw any military or other personnel from the vicinity of the Temple on Cambodian territory. Cambodia believes that this is a general and continuing obligation deriving from the statements concerning Cambodia’s territorial sovereignty recognized by the Court in that region.”
Through its Application Cambodia seeks an explanation from the Court regarding the ‘meaning and … scope of its Judgment, within the limit laid down by Article 60 of the Statute’. According to Cambodia such an explanation, ‘which would be binding on Cambodia and Thailand, … could then serve as a basis for a final resolution of this dispute through negotiation or any other peaceful means’.
In describing the more recent events which directly motivated its Application, Cambodia points to the failure of endeavours aimed at achieving agreement between the two States on a joint interpretation of the 1962 Judgment, a deterioration in relations following ‘discussions within UNESCO to have the Temple declared a World Heritage Site’ and armed incidents between the two States in April 2011.
In its Application Cambodia asked the ICJ to adjudge and declare:
“The obligation incumbent upon 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’ (point 2 of the operative clause [of the Judgment rendered by the Court in 1962]) is a particular consequence of the general and continuing obligation to respect the integrity of the territory of Cambodia, that territory having been delimited in the area of the Temple and its vicinity by the line on the map [referred to on page 21 of the Judgment], on which [the latter] is based.”
2. The request for the indication of provisional measures
Cambodia also filed a request for the urgent indication of provisional measures, pursuant to Article 41 of the Statute, which gives the Court the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. Before issuing a provisional measures order the Court needs to be satisfied that the following requirement s are met: (1) it has prima facie jurisdiction; (2) the order is necessary so as to preserve the rights of the parties concerned from irreparable prejudice; and (3) there is urgency – that is, there is a real risk that action prejudicial to the rights of either party might take place before the Court gives its final decision (see inter alia G. Zyberi, Provisional Measures of the International Court of Justice in Armed Conflict Situations, Leiden Journal of International Law, Volume 23, Issue 3, (2010) pp. 571-584).
According to Cambodia, ‘[s]ince 22 April 2011, serious incidents have occurred in the area of the Temple of Preah Vihear, …as well as at several locations along that boundary between the two States, causing fatalities, injuries and the evacuation of local inhabitants’. Indeed, there have been many reports in the media about these armed clashes. Cambodia contends that, since serious armed incidents are continuing, the Court should indicate such provisional measures as may be required pursuant to Article 41 of the Statute and Article 73 of the Rules of Court. Cambodia maintains that ‘[m]easures are urgently required, both to safeguard the rights of Cambodia pending the Court’s decision ⎯ rights relating to its sovereignty, its territorial integrity and to the duty of non-interference incumbent upon Thailand ⎯ and to avoid aggravation of the dispute’. Cambodia further explained that, ‘in the unfortunate event that its request were to be rejected, and if Thailand persisted in its conduct, the damage to the Temple of Preah Vihear, as well as irremediable losses of life and human suffering as a result of these armed clashes, would become worse’.
Cambodia requested the ICJ to indicate the following provisional measures, pending the delivery of its judgment:
– an immediate and unconditional withdrawal of all Thai forces from those parts of Cambodian territory situated in the area of the Temple of Preah Vihear;
– a ban on all military activity by Thailand in the area of the Temple of Preah Vihear;
– that Thailand refrain from any act or action which could interfere with the rights of Cambodia or aggravate the dispute in the principal proceedings”.
Furthermore, because of the gravity of the situation, and for the reasons expressed above, Cambodia respectfully requested the Court to indicate these measures as a matter of urgency, and to fix a date as soon as possible for the subsequent proceedings.
It remains to be seen whether the institution of the proceedings before the ICJ is going to have an appeasing effect on the conflict. Currently the Court is deliberating on two cases, namely Territorial and Maritime Dispute (Nicaragua v. Colombia) and Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece). The Court has still to fix a date for the subsequent proceedings on the issue of provisional measures.
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