ICJ judges hearing the Preah Vihear case from 1959-1962 and (inset) Cambodian Foreign Minister Hor Namhong (top) and Thai Foreign Minister Kasit Piromya (bottom).Anonymous said...
ICJ verdict:
The Siamese Government, and later the Thai Government, had raised no query about the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1935, a survey had established a divergence between the map line and the hue line of the watershed, and other maps that had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the watershed line. Thailand had stated that having been, at all material times, in possession of Preah Vihear, she had had no need to raise the matter; she had indeed instanced the acts of her administrative authorities on the ground as evidence that she had never accepted the Annex I line at Preah Vihear. But the Court found it difficult to regard such local acts as negativing the consistent attitude of the central authorities. Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received there by the French Resident for the adjoining Cambodian province, Siam failed to react.
From these facts, the court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted m interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be given now would be the same. The Court therefore felt bound to pronounce in favour of the frontier.
ICJ verdict:
The Siamese Government, and later the Thai Government, had raised no query about the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1935, a survey had established a divergence between the map line and the hue line of the watershed, and other maps that had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the watershed line. Thailand had stated that having been, at all material times, in possession of Preah Vihear, she had had no need to raise the matter; she had indeed instanced the acts of her administrative authorities on the ground as evidence that she had never accepted the Annex I line at Preah Vihear. But the Court found it difficult to regard such local acts as negativing the consistent attitude of the central authorities. Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received there by the French Resident for the adjoining Cambodian province, Siam failed to react.
From these facts, the court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted m interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be given now would be the same. The Court therefore felt bound to pronounce in favour of the frontier.
4 comments:
http://www.icj-cij.org/docket/files/151/16480.pdf.
Cambodia files an Application requesting interpretation of the Judgment rendered by the
Court on 15 June 1962 in the case concerning the Temple of Preah Vihear
(Cambodia v. Thailand) and also asks for the urgent indication
of provisional measures
THE HAGUE, 2 May 2011. On 28 April, the Kingdom of Cambodia filed an Application
requesting interpretation of the Judgment rendered on 15 June 1962 by the International Court of
Justice (ICJ) in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand). The
filing of such an application gives rise to the opening of a new case. Together with that
Application, Cambodia submitted an urgent request for the indication of provisional measures. The
latter opens incidental proceedings within the new case.
Request for interpretation
In support of its Request for interpretation, Cambodia invokes Article 60 of the Statute of the
Court, which provides: “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.” It also invokes Article 98 of the Rules of
Court.
In its Application, Cambodia indicates the “points in dispute as to the meaning or scope of
the Judgment”, as stipulated by Article 98 of the Rules of Court. It states in particular 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.”
Cambodia asserts that “Thailand disagrees with all of these points.”
2 -
In regard to the Court’s jurisdiction, the Applicant relies on Article 60 of the Statute of the Court, as cited above. Cambodia states inter alia that, in its view, “[a]s 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 present proceedings, as was established by [the initial Judgment rendered by the Court on its jurisdiction in] 1961.”
The Applicant explains that, while “Thailand does not dispute Cambodia’s sovereignty over the Temple — and only over the Temple itself”, on the other hand, it calls into question the 1962 Judgment in its entirety.
Cambodia contends that “in 1962, the Court placed the Temple under Cambodian sovereignty, because the territory on which it is situated is on the Cambodian side of the boundary”, and that “[t]o 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 [in 1962] is wholly erroneous, including in respect of the Temple itself”.
Cambodia emphasizes that the purpose of its Request is to seek an explanation from the Court regarding the “meaning and … scope of its Judgment, within the limit laid down by Article 60 of the Statute”. It adds that 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”.
Regarding the facts underlying its Application, Cambodia recalls that it instituted proceedings against Thailand in 1959, and that certain problems arose after the Court had given Judgment on the merits in 1962. It goes on to describe the more recent events which directly motivated the present Application (failure of endeavours aimed at achieving agreement between the two States on a joint interpretation of the 1962 Judgment; deterioration in relations following “discussions within UNESCO to have the Temple declared a World Heritage Site”; armed incidents between the two States in April 2011).
At the close of its Application, Cambodia asks the Court to adjudge and declare that
“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.”
Request for the indication of provisional measures
On the same day, Cambodia also filed a request for the urgent indication of provisional measures, pursuant to Article 41 of the Statute. That Article provides that “[t]he Court shall have 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”.
The Applicant explains that “[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”.
3 -
Cambodia states that
“[s]erious armed incidents are continuing at the time of filing of the present request, for which Thailand is entirely responsible. Cambodia accordingly asks the Court to indicate such provisional measures as may be required pursuant to Article 41 of the Statute and Article 73 of the Rules of Court.”
According to the Applicant,
“[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 explains 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”.
In conclusion, Cambodia
“respectfully requests the Court 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, “[b]ecause of the gravity of the situation, and for the reasons expressed above, Cambodia respectfully requests the Court to indicate these measures as a matter of urgency, and to fix a date as soon as possible for the subsequent proceedings”.
___________
The text of Cambodia’s Application requesting interpretation, as well as its request for the indication of provisional measures, will be available shortly on the Court’s website (www.icj-cij.org), under “Cases”. The Statute and the Rules of Court can be found under “Basic Documents”.
4
All the documents in the contentious proceedings relating to the case concerning the Temple of Preah Vihear (Cambodia v. Thailand), instituted in 1959 and concluded in 1962, are available on the Court’s website (www.icj-cij.org), under “Cases”. Go to “Contentious cases”, then select 1959 (date of introduction) or 1962 (date of culmination). A detailed summary of the Judgment rendered by the Court in 1962 can be found at: http://www.icj-cij.org/docket/files/45/4873.pdf.
___________
Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Associate Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)
Post a Comment