APPLICATION INSTITUTING PROCEEDINGS REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 15 JUNE 1962 IN THE CASE CONCERNING THE TEMPLE OF PREAH VIHEAR (CAMBODIA V. THAILAND)
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APPLICATION OF THE KINGDOM OF CAMBODIA
[Translation by the Registry]
1. Pursuant to Article 60 of the Statute of the International Court of Justice and Article 98 of the Rules of Court, the Kingdom of Cambodia (hereinafter “Cambodia”) is submitting to the Court a request for interpretation of its Judgment of 15 June 1962 (I.C.J. Reports 1962, p. 6) in which it decided the merits of the Temple of Preah Vihear case between Cambodia and the Kingdom of Thailand (hereinafter “Thailand”). Cambodia explains below the questions on which it is seeking an interpretation by the Court of its Judgment of 15 June 1962 (hereinafter “the 1962 Judgment”), as well as the reasons why it is requesting such an interpretation.
2. Cambodia will indicate in turn: the points on which the two States are in disagreement as regards the interpretation of the 1962 Judgment (paragraphs 5-6); the facts which justify the Application submitted to the Court (I, paragraphs 7-20); the existence and characteristics of the dispute over the interpretation of the Judgment (II, paragraphs 21-25); the jurisdiction of the International Court of Justice to entertain this Application (III, paragraphs 26-35); Cambodia’s interpretation of the 1962 Judgment (IV, paragraphs 36-43); and the request for interpretation itself (V, paragraphs 44-45). A number of preliminary remarks are nonetheless required.
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3. It must be recalled first of all that the dispute between Cambodia and Thailand submitted to the Court in 1959 was centred on the question of sovereignty in the area of Cambodian territory where the ruins of the Temple of Preah Vihear are situated (hereinafter “the Temple”). Thailand raised objections to the jurisdiction of the Court, which were rejected in the latter’s Judgment of 26 May 1961 (I.C.J. Reports 1961, p. 17) (hereinafter “the 1961 Judgment”).
4. In its 1961 Judgment, the Court decided that the declaration made by Thailand under Article 36, paragraph 2, of the Court’s Statute was a declaration entailing the compulsory jurisdiction of the Court in the proceedings; that the terms of that declaration did indeed cover the dispute brought before it; and that the nature of the dispute was as follows, according to the terms used by the Court itself:
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“In the present case, Cambodia alleges a violation on the part of Thailand of Cambodia’s territorial sovereignty over the region of the Temple of Preah Vihear and its precincts. Thailand replies by affirming that the area in question lies on the Thai side of the common frontier between the two countries, and is under the sovereignty of Thailand. This is a dispute about territorial sovereignty . . .” (1961 Judgment, p. 22.)
In its 1962 Judgment, the Court reiterated this statement, in the following terms:
“Accordingly, the subject of the dispute submitted to the Court is confined to a difference of view about sovereignty over the region of the Temple of Preah Vihear. To decide this question of territorial sovereignty, the Court must have regard to the frontier line between the two States in this sector.” (1962 Judgment, p. 14.)
A great deal of the 1962 Judgment was therefore devoted by the Court to establishing the line that was to constitute the frontier between the two States in the area of the Temple. Having established that line, the Court concluded that the Temple is situated in Cambodian territory.
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5. In accordance with the provisions of Article 98, paragraph 2, of the Rules of Court, whereby the requesting party must indicate the precise point or points in dispute as to the meaning or scope of a judgment, it transpires that the two States are in disagreement on the following points at least, namely:
(1) according to Cambodia, the Judgment 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, which “has become known in the case (and will be referred to herein) as the Annex I map”, 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 (for convenience, the Annex I map and the Court’s map showing an enlargement of the area of the Temple are attached as Cartographic Annexes 1 and 2);
(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.
Thailand disagrees with all of these points.
6. In the statement which follows, Cambodia will demonstrate, in the light of the documentation it has assembled, the existence of the disagreements referred to above, as well as showing, as is required by the jurisprudence of the Court, that those disagreements do indeed constitute a dispute as to the meaning and/or scope of the 1962 Judgment.
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I. Statement of the facts leading to the present dispute
7. In order to understand properly the context of the Judgment of 15 June 1962, it is necessary to recall briefly the historical background to this dispute, and then to mention more specifically those recent aspects which have given rise to this Application.
A. The historical background to the dispute between Cambodia and Thailand
8. Cambodia wishes to point out firstly that the case which it brought before the Court in 1959 was provoked by the occupation, since 1954, of Cambodian territory in the area of the Temple by Thai military forces. Today, the question remains that of the violation of Cambodia’s sovereignty by incursions and the presence of Thai military forces in the area of the Temple and its vicinity.
9. All the facts underlying the dispute between the two States over the Temple, as established by the Court, are set forth with great clarity on pages 15 to 32 of its 1962 Judgment. At the present time, it is only necessary to recall that Cambodia’s submission of that dispute to the Court had been preceded by an occupation of the area of the Temple by Thai armed forces, which Thailand had persistently refused ⎯ and still refuses ⎯ to withdraw, in spite of repeated requests to that effect by the Government of Cambodia. Cambodia’s 1959 Application instituting proceedings, as well as its Memorial and Reply, therefore asked the Court to adjudge and declare:
“(1) that the Kingdom of Thailand is under an obligation to withdraw the detachments of armed forces it has stationed since 1954 in the ruins of the Temple of Preah Vihear;
(2) that the territorial sovereignty over the Temple of Preah Vihear belongs to the Kingdom of Cambodia” (1962 Judgment, pp. 9-10).
Conversely, Thailand asked the Court to adjudge and declare that the Temple was “in Thai territory” (1962 Judgment, p. 10).
10. As recalled above, the greater part of the 1962 Judgment was strictly devoted to the establishment by the Court of the line that was to constitute the frontier between the two States in the area in question. Once this had been recognized by the Court, the operative part of the Judgment consequently read as follows. The Court
“finds that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia;
finds in consequence . . . 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; [and] . . . 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” (ibid., pp. 36-37; emphasis added).
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11. It does not seem appropriate, in the context of this Application, to go back over the long and complex history of the relations between the two States during this period, to the point when the frontier question arose, whether in general or in the area of the Temple of Preah Vihear that was referred to specifically in the 1962 Judgment. Cambodia is therefore only mentioning the facts that are relevant for the present proceedings before the Court. However, Cambodia wishes to recall that no fact subsequent to the Judgment can have the effect of modifying either the Judgment or its legal consequences. Cambodia is citing these facts solely in order to indicate to the Court the context in which the Application is now being presented.
12. Following the rendering of the Court’s Judgment in 1962, Thailand was to react sharply, with several skirmishes taking place in July and August 1962. Thailand’s official reaction came on 6 July 1962 in the form of a letter sent by the Thai Minister for Foreign Affairs to the Secretary-General of the United Nations (see Annex 1), reflecting a communiqué issued by the Government. Thailand took the view that the Judgment rendered by the Court was contrary to the “principles of law and justice”, but stated that it would honour the obligations incumbent upon it under the Judgment, pursuant to Article 94 of the United Nations Charter, while desiring to make a reservation regarding whatever rights Thailand has, or may have in future, “to recover the Temple of Phra Viharn [the name given to the Temple by Thailand] . . ., and to register a protest against the decision of the International Court of Justice awarding the Temple of Phra Viharn to Cambodia”.
After 1962, and until the events following the process of including the Temple on UNESCO’s list of World Heritage sites in 2007, no official claims were made by Thailand in the area of the Temple which is now claimed by that State (on these claims, see para. 25 below). Everything which has reoccurred since 2008 is thus no more than Thailand demonstrating the impossibility of it recovering sovereignty over the Temple, while interpreting the Judgment in a way which allows it to play the latter down, neutralizing its true significance on the ground in the area of the Temple of Preah Vihear.
B. The recent events which justify Cambodia’s present Application
13. The principal steps initiated by Cambodia to settle the outstanding issues on a bilateral basis will now be described. These endeavours, some of which are still ongoing, have been unsuccessful and have not made it possible to achieve a joint interpretation of the 1962 Judgment. This disagreement has become the subject of a dispute between the two States, to the extent that the recent period has been marked by a serious deterioration in relations between them, the origin of which may be found in the opening of discussions within UNESCO to have the Temple declared a World Heritage site.
14. The Temple was included on the list of World Heritage sites by UNESCO on 7 July 2008, despite strong opposition from Thailand. As from 15 July 2008, large numbers of Thai soldiers crossed the border and occupied an area of Cambodian territory near the Temple, on the site of the Keo Sikha Kiri Svara Pagoda (see the letter to the President of the Security Council from the Ambassador and Permanent Representative of Cambodia to the United Nations dated 19 July 2008 ⎯ Annex 2). This Pagoda was built by Cambodia in 1998 and had not previously given rise to any protest from Thailand, which could not have been unaware of its existence. It would appear, from this event, that Thailand claims this area as its sovereign territory, on the basis of a map which it produced itself (see Cartographic Annexes 3 and 4). Whereas this map generally adopts the watershed line according to Thailand’s earlier claim that was rejected by the Court in 1962, there is no doubt that, as far as Cambodia is concerned, it is not the result of any form of discussion between Cambodia and Thailand. Whatever the date of its circulation, the first time that this map was officially presented by Thailand as representing its territorial claims, as far as Cambodia is aware, was when it was annexed to an “Aide-Mémoire” of 17 May 2007 from the
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Thai Prime Minister, protesting at Cambodia’s zoning plan set forth in the Royal Decree of 10 November 2006 as part of the proposal to declare the Temple a UNESCO World Heritage site. This “Aide-Mémoire” was itself attached to a letter from the Thai Prime Minister of 18 July 2008 replying to a Note from the Cambodian Prime Minister of 17 July 2008 (see Annex 3).
15. It does not seem necessary, in the context of this Application requesting interpretation, to analyse in detail the above-mentioned series of protests by Thailand, the purpose of which appears to have been to seek to influence the decision taken by UNESCO. It is sufficient to recall that, prior to 2007, the basis for Thailand’s protests did not involve a territorial claim, but simply the assertion that the steps taken by Cambodia vis-à-vis UNESCO and on the ground were a violation of the provisions of the bilateral agreement contained in the Memorandum of Understanding of 14 June 2000 (hereinafter “the MoU” ⎯ see paras. 18 and 19 below), under which the two States were required to work together. It was therefore only from 2007, when steps were taken to have the Temple of Preah Vihear declared a World Heritage site, that the issue of a territorial claim by Thailand emerged, as illustrated by the unilateral map produced by that State which transcribes its interpretation of the 1962 Judgment.
16. The letter to the President of the Security Council from the Ambassador and Permanent Representative of Thailand to the United Nations dated 21 July 2008 (see Annex 4), i.e., immediately after the serious incidents of 15 July 2008, probably best sums up and symbolizes Thailand’s interpretation of the 1962 Judgment, and the real claims in relation to the latter.
In this letter, Thailand declares that it has fully implemented the Court’s 1962 Judgment and that the site of the Pagoda which that State has occupied since 15 July 2008 is part of Thailand’s territory. The letter further states that, according to Thailand, Cambodia has a “unilateral understanding” of the 1962 Judgment, and that Thailand itself has a different understanding of it.
Also in this letter, Thailand states, firstly, that the case was limited solely to “the region of the Temple”; secondly, that the boundary line “in the area adjacent to the Temple of Preah Vihear” is still to be determined; and, thirdly, that the Joint Boundary Commission provided for by the MoU is responsible for doing so.
Lastly, the letter is accompanied by a “Fact Sheet” annex which is very revealing of Thailand’s interpretation, since it is presented as a legal argument setting forth Thailand’s position on the question of the Temple of Preah Vihear and, consequently, on the meaning and scope of the 1962 Judgment. This annex reaffirms once again Thailand’s “due implementation” of the 1962 Judgment and refers to the work of the Joint Boundary Commission set up under the MoU as “ongoing”, even though the Commission’s work has remained on hold in the disputed area (see paras. 18 and 19 below). According to Thailand, in 1962, the Court: “did not in any case determine the location of the boundary between Cambodia and Thailand”.
On the contrary, as Cambodia will demonstrate below, the Court did indeed confirm and validate that boundary, on the basis of the Annex I map, in the reasoning that was essential for it to render its decision.
It must also be noted that this “Fact Sheet” completely distorts the meaning of a significant quotation. Thailand cites the following incomplete passage from the 1962 Judgment (without including a reference, moreover):
“[the Court is said not to have determined the boundary line because it was] unnecessary to consider whether, at Preah Vihear, the line as mapped does in fact correspond to the true watershed line in this vicinity, or did so correspond in 1904-1908, or, if not, how the watershed line in fact runs”.
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In fact, the full reference is as follows:
“The indication of the line of the watershed in Article I of the 1904 Treaty was itself no more than an obvious and convenient way of describing a frontier line objectively, though in general terms. There is, however, no reason to think that the Parties attached any special importance to the line of the watershed as such, as compared with the overriding importance, in the interests of finality, of adhering to the map line as eventually delimited and as accepted by them. The Court, therefore, feels bound, as a matter of treaty interpretation, to pronounce in favour of the line as mapped in the disputed area.
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Given the grounds on which the Court bases its decision, it becomes unnecessary to consider whether, at Preah Vihear, the line as mapped does in fact correspond to the true watershed line in this vicinity, or did so correspond in 1904-1908, or, if not, how the watershed line in fact runs.” (1962 Judgment, p. 35.)
Hence, while the Court considers it unnecessary to establish which is the watershed line in this area, that is because it rejects that line in favour of the one fixed by the Annex I map. The quotation included in the “Fact Sheet” therefore distorts in a quite unacceptable way the understanding of what the Court intended to say in this passage.
17. It is thus these events following the inclusion of the Temple on UNESCO’s list of World Heritage sites in 2008 which have prompted Cambodia to submit this request for interpretation to the International Court of Justice. In the light of Thailand’s violent reactions to the decision by UNESCO, the existence of a real difference of interpretation between the two States as to the meaning and scope of the 1962 Judgment has clearly emerged and, at the same time, led to the precise nature of that dispute being formulated with equal clarity. It has become obvious to Cambodia that, as long as this difference of interpretation persists and remains unresolved, there is unlikely to be any prospect of achieving a mutually agreed solution within the framework of bilateral negotiations.
18. A bilateral process was in fact initiated for this purpose between the two States in order to achieve a stable, viable and mutually acceptable solution. This process was set in train by the Joint Communiqué of 13 January 1994 and Joint Statement of 21 June 1997, signed in Phnom Penh by the Ministers for Foreign Affairs (see Annex 5) and providing for the establishment of a Joint Commission with the task of surveying and demarcating the land boundary. As the Statement of 21 June 1997 puts it:
“[The Foreign Ministers of Cambodia and Thailand] have now agreed to establish the Thai-Cambodian Joint Commission on Demarcation for Land Boundary. The Joint Commission shall be entrusted with the task of placing markers in order to indicate the land boundary between the two countries.”
19. Following this 1997 Statement, the Memorandum of Understanding of 14 June 2000 was signed between Thailand and Cambodia on the “Survey and Demarcation of Land Boundary” (see Annex 6), which must be understood as follows. According to the MoU, the aim is to survey and demarcate the boundary. With the assistance of a Joint Technical Sub-Commission, the
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73 boundary pillars set up between 1909 and 1919 are to be identified (Art. III, para. 2 (a)), and new ones placed in the previously unmarked sectors (point 3 of the Terms of Reference ⎯ TOR). The MoU therefore cites, with a view to carrying out this survey and demarcation, the same legal instruments as those used by the Court in its 1962 Judgment. There is no question of going back over the delimitation of the boundary in this area.
20. However, despite three meetings of the Joint Boundary Commission between November 2008 and April 2009, the process initiated by the MoU has remained deadlocked, due to a lack of political will to achieve its aims on the part of Thailand.
II. The existence of a dispute between Cambodia and Thailand as to the meaning and scope of the Judgment of 15 June 1962
21. According to a definition which has been recalled on numerous occasions, a legal dispute between two States is: “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11).
Or again, as the Court indicated in the South West Africa case: “to prove the existence of a dispute . . . [i]t must be shown that the claim of one party is positively opposed by the other” (Judgment, I.C.J. Reports 1962, p. 328).
This simply means that the respondent State must oppose the claims of the Applicant, which is certainly the case in this instance.
22. In the context of a request for interpretation, and as specified by Article 60 of the Statute, it must be a dispute as to “the meaning or scope” of the operative part of the judgment whose interpretation is being requested. Since its first decision involving interpretation, the Court has therefore set two conditions for the admissibility of a request for interpretation.
“(1) there must be a dispute as to the meaning and scope of a judgment of the Court;
(2) the request should have for its object an interpretation of the judgment” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 10).
This has been recalled more fully by the present Court:
“Thus it lays down two conditions for the admissibility of such a request [for interpretation]:
(1) The real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object 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. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal.
(2) In addition, it is necessary that there should exist a dispute as to the meaning or scope of the judgment.” (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402.)
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The need for a dispute to exist as to the meaning or scope of a judgment is a condition which has been recalled consistently by the International Court of Justice:
“As is clear from the settled jurisprudence of the Court, a dispute must exist for a request for interpretation to be admissible (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 216-217, para. 44; see also Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 36, para. 12).” (Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), para. 21.)
23. In its Judgment of 27 November 1950 in the Asylum case (interpretation), the Court further specified:
“Obviously, one cannot treat as a dispute, in the sense of that provision [Article 60], the mere fact that one Party finds the judgment obscure when the other considers it to be perfectly clear. A dispute requires a divergence of views between the parties on definite points.” (I.C.J. Reports 1950, p. 403.)
A divergence of views on definite points does indeed exist in the present case brought before the Court. As will be seen, for the two Parties, the reading of the Judgment does not lead to the same interpretation. Clearly, this is not a divergence resulting from the attitude of one State which thinks the Judgment is clear whereas the other finds it obscure, but a case of two differing interpretations and thus conflicting arguments, i.e., a dispute or difference as to the meaning and scope of points that were decided with binding force in the Judgment of 15 June 1962.
24. It is possible to summarize the import of this dispute as follows: in seeking to minimize the legal effects of the 1962 Judgment, Thailand accepts Cambodia’s sovereignty over the Temple, but denies that this has effects beyond a limited perimeter confined strictly to the Temple itself. A number of assertions by Thailand thus derive from this situation: (1) that the frontier in the area of the Temple has not been recognized by the Court and has still to be determined in law; (2) that this allows Thailand to lay claim to territory beyond the strict precincts of the Temple on the basis of the “watershed line”, as that State argued before the Court in 1959-1962; (3) that this permits Thailand to occupy that area regardless of the Judgment, in particular the second paragraph of the operative clause. For Cambodia, however, Thailand’s argument amounts to the Court recognizing sovereignty solely in respect of the Temple itself, which the Court rejected very clearly in its Judgment, since the first paragraph of the operative clause specifies expressis verbis that the Temple belongs to Cambodia on the basis of the sovereignty over the territory in which the Temple is situated; the second and third paragraphs of the operative clause thus draw particular conclusions from this, all these paragraphs relying on the assessment made by the Court of the status of the Annex I map in relation to the treaties which bind the two States in respect of boundaries.
25. Thailand’s argument seems to have emerged in different forms since 2007. In one of these versions, Thailand puts forward the existence of an area of territory said to be the subject of overlapping territorial claims by the two States (see the “Fact Sheet” annexed to the letter to the
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President of the Security Council from the Ambassador and Permanent Representative of Thailand to the United Nations dated 21 July 2008 ⎯ Annex 4). In the same document, however, the area in question is also said to be directly under Thailand’s sovereignty, thus precisely reflecting its unilateral map (see Cartographic Annexes 3, 4 and 5), which places the area of the Temple ⎯ defined by Thailand as lying within a perimeter that encloses some 4.6 sq km ⎯ under its sovereignty (see Cartographic Annex 6). Thailand thus immediately supplies an answer in its own favour to the two States’ supposed claims in this area. For Cambodia, this area is clearly under its sovereignty, as was found by the Court in its 1962 Judgment.
For Cambodia, not only are the two versions of Thailand’s argument incompatible with one another, they are also and above all incompatible with what the Court decided in 1962. This is clearly demonstrated by the fact that each version requires the creation of new and artificial lines in order to connect the “watershed line”, claimed by Thailand in the previous proceedings before the Court, with the “Temple area”, defined by the 1962 Judgment as coinciding with the line on the Annex I map; in other words, for the first time in many years since the Court’s Judgment, artificial demarcation lines are created which did not exist in 1962 and for which no basis can be found, either in the legal instruments on which the Court relied in 1962 in order to render its Judgment, or in the terms of the Judgment itself. By interpreting the latter in this way, Thailand not only calls into question the whole of the 1962 Judgment (and not merely the operative part), but also replaces what the Court finds in the reasoning of its Judgment with its own reading based on what the Court does not find.
Thailand does not dispute Cambodia’s sovereignty over the Temple — and only over the Temple itself. By its attitude, however, it calls into question the 1962 Judgment in its entirety, since accepting Cambodia’s sovereignty only over the Temple amounts to Thailand stating that the Court took the wrong course in 1962. The fact is that in 1962, the Court placed the Temple under Cambodian sovereignty, because the territory in which it is situated is on the Cambodian side of the boundary. To refuse Cambodia’s sovereignty over the area beyond the Temple as far as its “vicinity” is to say to the Court that the boundary line which it recognized is wholly erroneous, including in respect of the Temple itself.
III. The jurisdiction of the Court
26. Article 60 of the Statute of the International Court of Justice states 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.”
For the Court to be able to make findings, it must have jurisdiction and the application must be admissible. It is therefore for Cambodia to explain briefly the reasons why the Court does indeed have jurisdiction to rule on this question of interpretation.
27. Cambodia is returning to the Court now in respect of the Judgment given on 15 June 1962 because ⎯ as explained above ⎯ there was nothing to suggest, until recently, that Thailand would interpret that Judgment in a way that differed from Cambodia’s consistent interpretation of it. However, it appears that nothing in the Statute of the Court prevents it from entertaining this request for interpretation, the Court’s jurisdiction having been established clearly in its Judgment of 26 May 1961 which rejected the preliminary objections raised by Thailand, allowing it to settle the dispute on the merits in a Judgment whose interpretation is requested here.
28. Neither the Court’s power to interpret its own judgments, nor the right of a party to a dispute brought before the Court to request it to exercise that power, is subject to any limitation of time. The question of time is not specifically mentioned in either Article 60 of the Statute or in the
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more precise provisions of Article 98 of the Rules of Court. As far as Cambodia can establish, the absence of a time-limit is not accidental. This contrasts significantly with the limit of six months (from the discovery of a new fact) which the following article of the Statute lays down for an application for revision of a judgment, within a limit of ten years from the delivery of the judgment.
In Cambodia’s view, the statutory rules for arriving at a true interpretation of a judgment are closely linked to the binding character of judgments, as asserted by Article 94 of the United Nations Charter and Articles 59 and 60 (first sentence) of the Statute of the Court. Ex hypothesi, the binding effect of a judgment of the Court on the parties to a dispute must be regarded as a permanent obligation which continues without limitation of time. It therefore appears that, if difficulties arise at any time which jeopardize compliance with an obligation deriving from a judgment, or obstruct the implementation of a judgment, and if those difficulties result directly from a dispute between the parties as to the meaning or scope of the judgment, the procedure laid down in the Statute for interpretation exists in order for such an obstacle to be overcome. Whereas the revision of a judgment relates to some change in the legal situation contemplated by the original judgment (and the possibility of revision must therefore be linked to strict conditions, including temporal conditions), the aim of the procedure for interpretation is to preserve or restore the legal situation resulting from the judgment itself, which thus does not involve similar conditions being attached to this procedure under Article 60. Otherwise, a State whose rights have been determined and recognized by a judgment of the Court would have no means of recourse to the Court without the consent of the other party to the dispute, the latter being precisely the State with which the dispute exists regarding the interpretation of the judgment. If, for example, both parties agreed to request an interpretation from the Court jointly, it would no doubt be very difficult for the Court to refuse to respond on the basis of the period of time which had elapsed. Consequently, there would seem to be no grounds for rejecting such a situation when only one of the parties has made the request. As long as the dispute remains a matter of interpretation regarding the meaning and scope of the judgment, the consent of the opposing party is consubstantial with the initial consent given to the Court’s jurisdiction to settle the dispute in the case, as was established in this instance by the 1961 Judgment.
29. In addition to the points set out above, the fact that Cambodia is returning to the Court now, several decades after the Judgment was delivered, can be explained and justified by reference to a number of factors.
30. Following the Paris Accords of 1991, the final ending of the conflict with the Khmer Rouge movement in 1998 and the consolidation of an effective, democratic government in Cambodia able to conduct normal and peaceful relations with its neighbours and beyond, steps were taken to initiate a bilateral process between Cambodia and Thailand which, had it functioned in the way that Cambodia hoped, would have led to a stable situation being established, whereby the implementation of the Court’s 1962 Judgment would have been entirely possible. The principal means of achieving that was the process of demarcating the boundary between the two States, a process which was to be understood as being based on the legally determined frontier and was to lead, on the basis of an agreement, to the identification, precise siting and inclusion on maps of boundary markers along the whole length of the frontier shared with Thailand. Had that process been successfully completed, as Cambodia wished, it would have removed ipso facto the possibility of a dispute such as that concerning interpretation of the territorial régime in the particular area where the Temple of Preah Vihear is situated. It was only following Thailand’s opposition to the process of including the Temple on UNESCO’s list of World Heritage sites in 2008 that it became clear to Cambodia that the demarcation process had no realistic chance of being completed without a clear and authorized interpretation from the Court as to the meaning and scope of the 1962 Judgment. Cambodia does not believe that the Court can look unfavourably on the fact that Cambodia explored every bilateral possibility before reaching the conclusion that a
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fundamentally different interpretation existed between itself and its neighbour as to the meaning and scope of the 1962 Judgment, which could only be settled by means of this request for interpretation.
31. Cambodia wishes to make it very clear that, through this Application, it is in no way seeking any means of forced compliance with the 1962 Judgment. As will be explained below, Cambodia is only seeking an explanation from the Court itself of the real significance of the meaning and scope of its Judgment, within the limit laid down by Article 60 of the Statute, which would be binding on Cambodia and Thailand and could then serve as a basis for a final resolution of this dispute through negotiation or any other peaceful means.
32. The need to achieve a viable solution to this dispute has now become urgent, because of the potential for destabilizing international peace and security which lies in this situation unless it is resolved within a reasonable period by the Court. By finding that it has jurisdiction and interpreting its earlier Judgment, the Court will thus contribute to the maintenance of international peace and security, in keeping with its mission as the principal judicial organ of the United Nations and in accordance with Article 2, paragraph 3, and Chapter VI of the United Nations Charter. As justification, one need only briefly recall the recent events which are threatening international peace and security between the two States.
33. In a letter of 15 October 2008, Cambodia’s representative at the United Nations drew the attention of the President of the Security Council to the serious threats posed against Cambodia (see Annex 7). Indeed, on 15 October 2008, Thai troops once again crossed the frontier at three locations (Keo Sikha Kiri Svara Pagoda, Veal Intry and the hill of Phnom Trap, situated 700 metres, 1,120 metres and 1,600 metres respectively from the frontier, inside Cambodian territory) and opened fire on Cambodian soldiers. This followed the temporary occupation of the Pagoda near the Temple on 15 July 2008. This incident of 15 October 2008 caused the death of two Cambodian soldiers, with two others being injured.
34. Although relations between the Thai and Cambodian troops calmed temporarily, the uncertainties caused by Thailand’s volatile attitude do not suggest that this precarious situation has within it a sustainable solution for peace between the two States and respect for their territorial integrity. This is evidenced by the fact that once again, on 3 April 2009 (despite the process of negotiation within the framework of the MoU), Thai troops crossed the frontier, advancing as far as Phnom Trap, Tasem and Veal Intry in the immediate vicinity of the Temple, and opposite the Temple itself, using heavy weapons which destroyed the office of the Preah Vihear Authority and also the market situated in the area around the Temple, seriously damaging the stairway leading to the Temple and forming an integral part of it (see Cartographic Annex 7). Noting a build-up of military forces near the Temple, with escalating tensions, and recalling that in 1962, the International Court of Justice had declared that the Temple was situated in Cambodia, the Secretary-General of the United Nations even offered his help to resolve this dispute between the two States (see United Nations press release of 20 August 2010 ⎯ Annex 8). Unfortunately, from 4 to 7 February 2011, Thailand provoked further incidents by advancing into the Temple area, using in particular heavy artillery and fragmentation shells which caused many casualties among the Cambodian armed forces and civilians, as well as material damage to the Temple itself (see Cartographic Annexes 8 and 9). These acts were recalled by the Deputy Prime Minister and Minister for Foreign Affairs and International Co-operation of Cambodia at the special meeting of the Security Council held on this matter, at Cambodia’s request, on 14 February 2011. The Deputy Prime Minister also referred to the direct threats to open hostilities made by the Prime Minister of Thailand shortly before these serious incidents. The Security Council’s urging of a permanent ceasefire (see press statement of 14 February 2011 ⎯ Annex 9), accepted by
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Cambodia, initially received no response from Thailand. The meeting of ASEAN Foreign Ministers of 22 February 2011 in Jakarta (Indonesia) finally accepted the invitation by Cambodia and Thailand for observers from Indonesia to be sent to the border between the two countries in the area of the Temple, in order to observe the commitment by both countries to respect the ceasefire. Despite this measure, the situation remains precarious, with numerous obstacles, and a resumption of armed hostilities is still possible (see the Statement by the Chairman of ASEAN of 22 February 2011 ⎯ Annex 10). Hence, at a meeting of the Joint Boundary Commission held under the aegis of Indonesia on 7 and 8 April 2011, Thailand made it a condition for any implementation of the Commission’s decisions that the latter should be submitted for the prior approval of the Thai Parliament, a condition which has been put forward for several years and is continuing to obstruct the work of demarcating the frontier between the two States.
It should be added that there is a growing number of incidents between the two States, including large-scale attacks launched against Cambodia by Thai troops between 22 and 26 April 2011 at other locations along the frontier. These actions are a further flagrant violation of the Security Council’s statement of 14 February 2011 and of the Statement by the Chairman of ASEAN of 22 February 2011 calling for a permanent ceasefire (see Annexes 9 and 10). They constitute a serious threat to peace and security in the region, as was emphasized once again by the Secretary-General of the United Nations (see Annex 11).
35. In these various incidents between 2008 and 2011, architectural features of the Temple have been damaged, leading to inquiries and reports by the UNESCO authorities, which have recommended the convening of an international co-ordinating committee, as envisaged in the decision to list the site. The report of 26 May 2009 by the UNESCO World Heritage Committee (see Annex 12) indicates in particular that:
“the continuous presence of troops around the property entails a risk of possible further incidents and hampers the implementation of the recommendations made by the Committee for the strengthening of the protection and management of the World Heritage property”.
Following the serious incidents in early February 2011, the Director-General of UNESCO, Mrs. Irina Bokova, decided to send a mission to the site, together with a special envoy in the person of the former UNESCO Director-General, Mr. Koïchiro Matsuura.
There is no question that all these initiatives to maintain international peace and security (see in particular the European Parliament resolution of 17 February 2011 ⎯ Annex 13) illustrate the seriousness of a situation which the International Court of Justice could bring to an end by interpreting the Judgment of 15 June 1962.
IV. Cambodia’s interpretation of the 1962 Judgment
36. According to the operative part of the 1962 Judgment, the obligation to withdraw any military or police forces, or other guards or keepers, stationed by Thailand at the Temple, or in its “vicinity” on Cambodian territory (as well as the obligation to return objects removed from the Temple or the Temple “area”) is simply a consequence of the fact that the Temple is situated in territory under the sovereignty of Cambodia. The Court directly confirms this situation by stating, before setting forth those two specific obligations: “finds in consequence . . .”. It does not seem possible to deal with this aspect more clearly or completely. Nevertheless, this key point is in fact emphasized again by the use of the phrase “on Cambodian territory”, which clearly indicates that Thailand’s obligation to withdraw its military forces goes beyond a withdrawal from only the precincts of the Temple itself and extends to the area of the Temple in general.
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37. However that may be, the fact that the obligation borne by 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” appears directly within the operative clause, as a consequence of the principal finding, also leads in Cambodia’s view to a further and associated conclusion, namely that the Court did not intend to make this obligation a specific and immediate one at the time of the Judgment, but that it was to be understood as a general and continuing obligation not to violate Cambodian territory by actions of the kind referred to above. Since it appears that the findings concerning Cambodia’s sovereignty in the first paragraph of the operative clause must be understood as a permanent situation, the result is that the consequences of that permanent situation, as recognized and stated by the Court, likewise acquire a permanent character; in other words, the Judgment of the Court must be understood as entailing a definite obligation for Thailand not to advance unilaterally into Cambodian territory in the future.
38. That fundamental point having been established, Cambodia wishes to focus its attention on the first paragraph of the operative clause itself. Cambodia takes the view that the way in which the Court formulated this paragraph shows that the latter also specifically entails a significant consequence: the Court does not attribute sovereignty over the Temple to Cambodia, but recognizes that sovereignty as an automatic consequence of the fact that the Temple is situated in territory under the sovereignty of Cambodia, as determined in the reasoning of the decision on the basis of the Annex I map. In other words, the Court recognizes that there is no separate title to the Temple other than that which already exists to Cambodia’s sovereign territory.
39. Cambodia believes that it was logically impossible for the Court to pronounce in this way without a recognition on its part, aided by legal instruments, of the existence of a frontier between Cambodia and Thailand. As the Court states: “the Court can only give a decision as to the sovereignty over the Temple area after having examined what the frontier line is” (1962 Judgment, pp. 16-17).
Consequently, the Court could not have decided that the Temple “is situated in territory under the sovereignty of Cambodia” without having reached the clear conclusion both that a legally established frontier exists in the area in question, and that its location is sufficiently well established to enable it to declare that the Temple is situated on the Cambodian side of that boundary.
This conclusion derives from the terms used by the Court in the operative clause. It is also directly confirmed, in various ways, by other key statements in the Judgment which are given below:
“The real question, therefore, which is the essential one in this case, is whether the Parties did adopt the Annex I map, and the line indicated on it, as representing the outcome of the work of delimitation of the frontier in the region of Preah Vihear, thereby conferring on it a binding character.” (1962 Judgment, p. 22; emphasis added.)
“It follows from the preceding findings that the Siamese authorities in due course received the Annex I map and that they accepted it.” (Ibid., p. 26.)
“Next, the map marked Preah Vihear itself quite clearly as lying on the Cambodian side of the line, using for the Temple a symbol which seems to indicate a rough plan of the building and its stairways.” (Ibid., p. 26.)
“What seems clear is that either Siam did not in fact believe she had any title ⎯ and this would be wholly consistent with her attitude all along, and thereafter, to the
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Annex I map and line ⎯ or else she decided not to assert it, which again means that she accepted the French claim, or accepted the frontier at Preah Vihear as it was drawn on the map.” (Ibid., p. 31.)
“The Court will now state the conclusions it draws from the facts as above set out.
Even if there were any doubt as to Siam’s acceptance of the map in 1908, and hence of the frontier indicated thereon, the Court would consider, in the light of the subsequent course of events, that Thailand is now precluded by her conduct from asserting that she did not accept it.” (Ibid., p. 32.)
“The Court however considers that Thailand in 1908-1909 did accept the Annex I map as representing the outcome of the work of delimitation, and hence recognized the line on that map as being the frontier line, the effect of which is to situate Preah Vihear in Cambodian territory. The Court considers further that, looked at as a whole, Thailand’s subsequent conduct confirms and bears out her original acceptance, and that Thailand’s acts on the ground do not suffice to negative this. Both Parties, by their conduct, recognized the line and thereby in effect agreed to regard it as being the frontier line.” (Ibid., pp. 32-33.)
“There is finally one further aspect of the case with which the Court feels it necessary to deal. The Court considers that the acceptance of the Annex I map by the Parties caused the map to enter the treaty settlement and to become an integral part of it.” (Ibid., p. 33.)
40. For Cambodia, these arguments are inseparable from the operative part of the Judgment and determine its significance. As the Court declared in a previous Judgment:
“In order that a difference of opinion should become the subject of a request for an interpretation under Article 60 of the Statute, there must therefore exist a difference of opinion between the Parties as to those points in the judgment in question which have been decided with binding force. That does not imply that it must be beyond dispute that the point the meaning of which is questioned is related to a part of the judgment having binding force. A difference of opinion as to whether a particular point has or has not been decided with binding force also constitutes a case which comes within the terms of the provision in question, and the Court cannot avoid the duty incumbent upon it of interpreting the judgment in so far as necessary, in order to adjudicate upon such a difference of opinion.” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, pp. 11-12.)
More recently, the Court again asserted that: “any request for interpretation must relate to the operative part of the judgment and cannot concern the reasons for the judgment except in so far as these are inseparable from the operative part” (Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 35, para. 10).
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41. It appears logical and obvious to Cambodia that the Court’s assertions in 1962 recalled in paragraph 40 above are precisely “inseparable from the operative part”, in the sense the Court gave to that expression in the case between Cameroon and Nigeria. This implies that, in the Judgment of 15 June 1962, the first paragraph of the operative clause, in Cambodia’s view, was manifestly worded with the intention of producing consequences and implications, as is confirmed by the remainder of the operative clause.
42. In 1962, the Court in no way established a different boundary from the one which existed already according to the Annex I map, and did not draw it on the basis that the Temple belonged to Cambodia, but attributed sovereignty to Cambodia over the territory in which the Temple is situated because Cambodia already held sovereignty over that territory. This point can thus be regarded ⎯ as the Court itself indicated in the 1962 Judgment by stating that “the Court can only give a decision as to the sovereignty over the Temple area after examining what the frontier line is” (1962 Judgment, pp. 16-17) ⎯ as forming a key element of the decision made in the Judgment of 15 June 1962 and transcribed into its operative part.
43. International law does not recognize nomadic frontiers. The territorial integrity of States and the legal security attached to that integrity demand that boundaries be precisely determined. To be sovereign means holding sovereignty over a specific territory which cannot be defined in a unilateral way. Otherwise, a dispute, such as the one which Cambodia is setting forth here before the Court, may be prolonged and may seriously threaten international peace and security at any time.
V. The interpretation requested from the Court
44. In the first paragraph of the operative clause of its 1962 Judgment, the Court found that “the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia”. It added, in the second paragraph, that Thailand, in consequence, 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” (emphasis added), as Cambodia had requested in its first submission at the time of the 1962 Judgment (see para. 9 above). These operative provisions are a direct consequence of the fact, acknowledged by the Court in the reasoning of its decision, that the line shown on the Annex I map constitutes the frontier between the two States in the area of the Temple. The obligation to withdraw Thai troops from the “vicinity” of the Temple therefore merely illustrates the general and continuing obligation borne by Thailand to respect Cambodia’s sovereignty and territorial integrity up to the frontier as thus recognized. That obligation applies to all Cambodian territory in the area of the Temple, territory which is currently the subject of armed incursions and is claimed by Thailand within a perimeter enclosing 4.6 sq km, unilaterally and arbitrarily determined by that State.
Faced with the repeated armed attacks by Thailand in this area, including on the Temple itself, Cambodia is showing restraint, but it takes the view that only an authentic and binding interpretation given by the Court of its own Judgment can provide a means of ensuring lasting peace and security in this region.
45. Given that “the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia” (first paragraph of the operative clause), which is the legal consequence of the fact that the Temple is situated on the Cambodian side of the frontier, as that frontier was recognized by the Court in its Judgment, and on the basis of the facts and arguments set forth above, Cambodia respectfully asks the Court to adjudge and declare that:
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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” (second paragraph of the operative clause) 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 Annex I map, on which the Judgment of the Court is based.
28 April 2011
(Signed) HOR Namhong,
Deputy Prime Minister and Minister for Foreign Affairs and International Co-operation, Agent of the Kingdom of Cambodia.
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