Interview with lawyer Bora Touch on ICJ's ruling

Photo: Courtesy of International Court of Justice

Courtesy of CambodiaWatch-Australia

Q & A: Analysis of ICJ's Provisional Ruling on Preah Vihear temple

On 18 July 2011 the International Court of Justice issued the provisional ruling on Preah Vihear temple and the surrounding areas. This is the first ruling pending the Court's final decision on its interpretation of its 1962 ruling.

CambodiaWatch-Australia has managed to catch up with a Khmer Lawyer in Sydney, Mr Bora Touch Esq to discuss further about the ruling and its implication(s).

CambodiaWatch (CW): Can you please briefly outline the latest ICJ’s provisional ruling on Preah Vihear temple?

Bora Touch: On 28 April 2011, Cambodia filed an Application in the ICJ requesting that the ICJ interprets the judgment which ICJ gave on 15 June 1962 in relation to Preah Vihear Temple (Judgment). Also on 28 April 2011, Cambodia filed an incidental application seeking orders to cause the incursions onto Cambodia’s territory by Thailand to cease pending the Court ruling on the request for interpretation of the Judgment.

Thailand opposed both of Cambodia’s applications arguing that the ICJ should dismiss them on the basis that it has no jurisdiction to make the rulings sought and that, in any event, time has long run out.

ICJ rejected Thailand’s arguments. The ICJ ordered that (1) both Thailand and Cambodia immediately withdraw their respective troops, temporarily, from the newly created provisional demilitarized zone, which the ICJ created: see map attached; (2) Thailand not obstruct Cambodia’s free access to the Temple or prevent it from providing fresh supplies to Cambodia’s non-military personnel.

CambodiaWatch (CW): Is the ruling a victory to either Cambodia or Thailand or both? Some sections of Cambodian community were displeased with the ruling, saying that “[The decision] is unjust for Cambodia, as the court has ordered us to withdraw our troops from an additional area of 4.6 square kilometers (2.8 square miles.)”.
What is your view on that?

Bora Touch: There is no winner or loser at this stage. This is just a temporary measure to prevent or, at least, avoid aggravation, of the dispute pending the ICJ’s eventual decision on Cambodia’s main Application for Interpretation, which will come out in a couple of months. Only troops and police are to be withdrawn. Civilian authority is stay in place as usual. ICJ stated that Cambodia’s ownership of the temple is not disputed.

The ICJ’s ruling deals with something that had not previously been dealt with, namely whether article 60 of the Statute of the ICJ imposes a time limit. The ICJ has found that it does not and this is a precedent on which future parties will be able to rely. This differs from Revision and Appeal provisions which do have time limits. In the case of a Revision Application, an applicant has six months from the discovery of the relevant new fact to make a Revision application and no application for revision may be made after the lapse of ten years from the date of the judgment (Art. 61) or ten years of the rendering the judgment for appeal application. In contrast, Article 60 of the Statute of ICJ provides only 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”. The ICJ could have had recourse to the practice in other international tribunals and international courts of arbitration where such an application must be made within three months. The formulation adopted by the International Law Commission, an organ of the UN, in article 33 of its model rules as the following:

“1. Any dispute between the parties as to the meaning and scope of the award shall, at the request of either party and within three months of the rendering the award, be referred to the tribunal which rendered the award”.

If the ICJ had referred to and relied on this, Cambodia’s interpretation application would have been denied.

In its history, the ICJ has made 40 orders, three of which involved troop withdrawal. The ICJ has, however, never before made temporary measures/orders ordering the parties to withdraw military personnel from their undisputed territories. In this case, Thailand is to withdraw about two kilometres from (front of the Temple) the boundary line as depicted in 1907/Annex I map into Thai territory.

I consider the ruling as a positive step for Cambodia.

CambodiaWatch (CW): What is the size of the provisional demilitarized zone, and How much are Thailand and Cambodia's territories?

Bora Touch: The provisional demilitarized zone covers 20 kilometer squares. Excluding 4.6 km sq of the so-called disputed area, the zone cover about 5 km sq of undisputed Thai territory about about 10 km sq of Khmer territory.

CambodiaWatch (CW):What are the potential risks and consequences if both Cambodia and Thailand do not comply with the ruling?

Bora Touch: A consequence of non-compliance with ICJ’s decision/Orders is, the non-compliant party could face sanctions. Article 94(1) of the United Nations’ Charter(Constitution) stipulates that each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. Article 94(2) states that “if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the party may have recourse to the Security Council, which may… make recommendations or decide upon measures to be taken to give effect to the judgment”.