Inna Uchkunova, New Bulgarian University (LLM), is a member of the International Moot Court Competition Association (IMCCA), Bulgaria. Oleg Temnikov is an Attorney-at-Law and Associate at the Sofia Office of Wolf Theiss law firm.
There is a fable which tells of two brothers who made their living from farming. They shared a common farmland and divided the harvest equally. Every year, the night after harvesting, the same thing happened. Each brother would think that the other one deserves a greater share of the grain, so each would fill two sacks and will sneak unnoticed into his brother’s barn to put the sacks there. One such night, the brothers bumped into each other halfway between their houses and thus they understood what has been happening. Word spread in the village and their compatriots decided to make a shrine on the place of their meeting to commemorate the compassion of the two brothers.
The story of the Temple of Preah Vihear (aerial view above left, credit) is a different one. Instead of bringing people together, it has divided two nations for decades. The Temple has been a source of contention between Cambodia and Thailand since Cambodia’s independence from French rule in the mid-1900s. On 11 November, the ICJ rendered a judgment on Cambodia’s Request for Interpretation of the Court’s 1962 judgment in the Preah Vihear case. This post discusses the history of the case and the recent judgment.
Cambodia first instituted proceedings before the ICJ in 1959, after Thailand occupied the Temple and negotiations failed to produce a peaceful settlement. Cambodia asked the Court to declare that Cambodia had sovereignty over the Temple and that Thailand was obliged to withdraw its forces. In its final submissions, Cambodia presented additional claims asking the Court to adjudge, inter alia, that “the frontier line between Cambodia and Thailand, in the Dangrek sector, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (Annex 1 to the Memorial of Cambodia).” The Court determined this claim to be inadmissible as a “new claim” and held that it “can be entertained only to the extent that [it] give[s] expression to grounds, and not as claims to be dealt with in the operative provisions of the Judgment.”
In its Judgment on the Merits of 15 June 1962, the Court held that by failing to protest for over fifty years after receipt of the Annex 1 map, Thailand acquiesced to the position of the frontier shown on the map. In the words of the Court, “Thailand… recognized the line on that map as being the frontier line, the effect of which is to situate Preah Vihear in Cambodian territory.” This finding represented a deviation from the Court’s usual treatment of maps. In previous cases, for example in the Frontier Dispute (Burkina Faso/Niger) case, the Court has treated maps as mere circumstantial evidence. In Preah Vihear, however, the Court ruled that “the acceptance of the Annex 1 map by the Parties caused the map to enter the treaty settlement and to become an integral part of it.”
In view of this conclusion, the Court held 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.”
Given the imprecise language referring to the “vicinity” of the Temple, Thailand claimed that its obligations under the 1962 Judgment would be completely discharged if it withdrew only from the “ruins of the Temple and the ground on which the Temple stood.” As a consequence, Thailand erected a barbed wire fence close to the Temple buildings and installed signs stating, “the vicinity of the Temple of [Preah Vihear] does not extend beyond this limit”.
Tensions rose in 2007, when Cambodia requested inclusion of the site of the Temple on the World Heritage List. Cambodia sent a map to UNESCO showing the entire promontory of Preah Vihear, as well as the hill of Phnom Trap, to be Cambodian territory. Thailand protested immediately, and a number of armed incidents took place in the border area close to the Temple.
Cambodia filed a request with the ICJ asking for interpretation of the 1962 Judgment. Cambodia claimed, in essence, that there was a dispute between the parties regarding the scope of the 1962 Judgment, particularly concerning whether the Court had decided with binding force that the line depicted on the Annex I map constitutes the frontier between the Parties in the area of the Temple. The other two points in dispute were the scope of the phrase “vicinity of Cambodian territory” used in the operative clause of the 1962 Judgment and, accordingly, the nature of Thailand’s obligation to withdraw. These questions are the subject of the Judgment on the request for interpretation rendered by the Court on 11 November 2013.
At the outset, the Court recalled the requirements of Article 60 of the Statute, namely, the existence of dispute between the parties as to the meaning or scope of a judgment rendered by the Court—that is, a dispute concerning the operative clause of the judgment in question, and not to the reasons for the judgment, except insofar as the reasons are inseparable from the operative clause. In other words, the object of a request for interpretation “must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided.” The Court also clarified in response to a contention raised by Cambodia that the headnote of the Judgment cannot provide guidance as to its scope and that it does not represent “an authoritative summary of what the Court has actually decided.”
Further, with a view to the primacy of the principle of res judicata, the Court noted that the real purpose of the request for interpretation must be to obtain an interpretation of the judgment and not, for example, to achieve revision of the judgment or to delay its implementation. With these considerations in mind, the Court decided the following:
- By way of interpretation, the “vicinity” of the Temple means the entire promontory of Preah Vihear but excluding the hill of Phnom Trap. The Court reached this conclusion having regard to the evidence before the Court in 1962. Thus, the obligation to withdraw could only have referred to the place actually occupied by Thailand. By the time the 1962 Judgment was rendered this was exactly the promontory of Preah Vihear.
- The Court could not pronounce or give any clarification on the question whether the line shown on the Annex 1 map constitutes the frontier between the Parties, given that the Court did not decide this question with binding force in the 1962 Judgment. The Court merely stated,
In these circumstances, the Court does not consider it necessary further to address the question whether the 1962 Judgment determined with binding force the boundary line between Cambodia and Thailand. In a dispute concerned only with sovereignty over the promontory of Preah Vihear, the Court concluded that that promontory, extending in the north to the Annex I map line but not beyond it, was under Cambodian sovereignty. That was the issue which was in dispute in 1962 and which the Court considers to be at the heart of the present dispute over interpretation of the 1962 Judgment.
- Thailand was under an obligation to withdraw its forces from the territory of the promontory of Preah Vihear.
- Interestingly, Thailand had argued that, in deciding upon the request for interpretation, the Court must consider the practice of the two States in the period after the 1962 Judgment. The Court disagreed in strong terms, finding, “A judgment of the Court cannot be equated to a treaty, an instrument which derives its binding force and content from the consent of the contracting States and the interpretation of which may be affected by the subsequent conduct of those States, as provided by the principle stated in Article 31, paragraph 3 (b), of the 1969 Vienna Convention on the Law of Treaties.”
- Finally, the Parties have a duty to settle any dispute between them by peaceful means.
Because it refused to clarify whether the line shown on the Annex 1 map constitutes the frontier between the Parties, the Court was unable to put an end to a long-lasting dispute between Cambodia and Thailand. On the other hand, this question was not before the Court in 1962, and it was not decided with binding force but merely included in the reasoning of the Judgment. The Court had found this claim inadmissible as a new claim, although this is not explicitly stated in the 1962 Judgment. If the 2013 Court had provided an interpretation on this point, it would have substituted itself for the 1962 Court by adding a question which was not decided at that time in the operative part. In effect, this aspect of Cambodia’s request amounted to a request for revision. Thailand’s behavior could also be criticized as hardly meeting the standard of good faith required in the implementation of the judgments of the principal judicial organ of the United Nations.
More generally, greater clarity in the drafting of judgments could prevent exacerbation of existing disputes in future cases. The Preah Vihear case demonstrates how things may go wrong when expressions in the judgment are susceptible to more than one interpretation by the parties. Nonetheless, the Court’s judgment on interpretation does not seem to have surprised either of the two litigant States and has been fairly positively accepted. As noted by one commentator for the blog Siam Voices “[o]n the surface, a lot of tension has been diffused today.”
This is the hope of the world community. In Sanskrit, Preah means “sacred” and Vihear means “shrine”. While the Temple is sacred for both nations, thus provoking this long-running dispute, peace is more sacred.