On Monday of this week, the International Court of Justice indicated provisional measures in the case between Cambodia and Thailand regarding the Temple of Preah Vihear. The case was filed earlier this year after confrontations between the armed forces of both States in the area of the Temple. The case concerns a request by Cambodia for interpretation of the judgment that the ICJ issued in 1962 in the orignal dispute between the two States. In that earlier judgment, the Court had found that “the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia;” and 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.” In the request for interpretation, Cambodia is asking the Court to clarify the meaning of the phrase “vicinity on Cambodian territory”, to state that the obligation to withdraw from that vicinity is a continuing obligation (and not a one time obligation fulfilled back in 1962). Most importantly, it seems to me, Cambodia is asking the Court to state that its 1962 judgment recognized with binding effect the frontier line that was indicated on the so called “Annex 1 map” extensively discussed by the Court back in 1962 (but which was not referred to in the operative part of the judgment). In other words, Cambodia wishes the court to clarify that the 1962 judgment did not just recognise that the Temple and its vicinity is are on Cambodian territory but determined the frontier between the two State more generally.
In its provisional measures order, the Court went beyond the request by Cambodia which was that the Court order Thailand to withdraw its forces from those parts of Cambodian territory in the area of the Temple. Instead, the Court decided to address its orders to both parties and ordered:
Both Parties shall immediately withdraw their military personnel currently present in the provisional demilitarized zone, as defined in paragraph 62 of the present Order, and refrain from any military presence within that zone and from any armed activity directed at that zone;
The order was criticised by a number of dissenting judges (President Owada, Judges Al Khasawneh, Xue, Donoghue & Judge ad hoc Cot) because the provisional demilitarized zone not only required the parties to withdraw from the territory in dispute but also from territory indisputably under their own sovereignty (see also post by Julian Ku at Opinio Juris). I will return to this point later.
However, the main thing I want to do is to highlight two developments that may not be easily noticed in the Court’s recent case law on provisional measures. The first of these developments is that the in the past couple of years the Court has actually introduced an additional requirement for the indication of provisional measure. The second is that the Court (in a return to earlier practice) is more prescriptive in indicating provisional measures than it has been at some points in its history.
The Relationship between Provisional Measures Orders and the Merits of the Case
Traditionally, there have been three conditions which must be fulfilled for the indication of provisional measures. First of all, there must be prima facie jurisdiction. Secondly, the measures requested must be related or linked to the claim or rights which form the subject matter of the main proceedings. Thirdly, the situation must be one of urgency, meaning that there must be a risk of irreparable prejudice to the rights at stake. Now the court has added, without much discussion, a fourth requirement that:
“the Court may exercise this power [to indicate provisional measures] only if it is satisfied that the rights asserted by a party are at least plausible” (Cambodia v. Thailand Provisional Measures order, para. 33)
This requirement was first added in the Obligation to Prosecute or Extradite case (Belgium v. Senegal) of 2009. What the Court is now saying is that there must be some relationship between success on the merits of the underlying claim and the indication of provisional measures. It is not enough just to claim rights and to show that the measures requested relate to the claim. The underlying claim itself must have some merit to it. Read the rest of this entry…