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Provisional measures in Temple of Preah Vihear Case – a case of creative adjudication

As reported in a previous posting, the on-going dispute between Thailand and Cambodia over the Temple of Preah Vihear is once again before the International Court of Justice.  Cambodia has requested an interpretation of the original judgment of the Court in order to settle some differences of opinion between the two parties.  The situation on the ground has been highly tense.  Indeed, clashes between soldiers have caused several casualties, as well as damage to the temple, a UNESCO World Heritage site.  Negotiations taking place under the auspices of ASEAN had failed to make any advances on the issue and despite a call from the UN Security Council for a permanent ceasefire, incidents have continued to occur.

In order to prevent a further deterioration of the situation, Cambodia also requested the indication of provisional measures.  The Court issued its order on provisional measures on 18 July 2011.  The order contains four provisional measures, although none of those requested by Cambodia!

Cambodia has asked the Court to order Thailand to withdraw all Thai forces from the vicinity of the temple and a ban on all military activity by Thailand in the area of the temple.  Moreover, Cambodia had also requested the Court to order Thailand to refrain from any action or act which could interfere with the rights being claimed by Cambodia.

The Court accepted that the situation warranted the indication of provisional measures.  It accepted that the measures requested by Cambodia were sufficiently linked with the alleged rights at issue in the principal proceedings and it held that “there is a real and imminent risk of irreparable damage being caused to the rights claimed by Cambodia.”  Yet, instead of indicating the measures requested by Cambodia, the Court decided to exercise its power to indicate its own provisional measures.

In the circumstances, the Court considered that it was appropriate to indicate measures addressed to both parties.  In a creative decision, the Court defined a provisional demilitarized zone from which armed forces from both sides should be withdrawn.  It held that “both Parties shall refrain not only from any military presence within that provisional demilitarized zone, but also from any armed activity directed at the said zone.” (para. 63 of the Order)  There is a small question over what is meant by “military personnel” in the context of the order, particularly as the order explicitly allows other officials “necessary to ensure the security of persons and property” to stay in the area.  This ambiguity could lead to some difficulties in practice.

The Court did not stop at defining a provisional demilitarized zone, however.  It also ordered both parties to continue to co-operate with the peace process organised under the auspices of ASEAN.  Moreover, both Thailand and Cambodia were ordered to allow observers appointed by ASEAN to have access to the provisional demilitarized zone.  Thus, ASEAN will take over the role of policing the demilitarized zone established by the Court.  This is an interesting move by the Court.  In essence, the Court has mandated the adoption of the ASEAN proposals for observers to be sent to the region, a proposal which the parties had thus far been resisting.  At the same time, it has created a mechanism through which its order can be monitored by an independent agency.

Finally the Court ordered both parties to refrain from any other action which might aggravate or extend the dispute or make it more difficult to resolve.  This is a sweeping provision which is designed to catch any activity which is not expressly covered by the other orders.

As the Court reminds the parties, provisional measures orders are binding and failure to comply with them amounts to a violation of international law.  It remains to be seen whether the Court will be successful in preserving peace on the Thailand-Cambodia border pending the settlement of the dispute.