Thailand to the ICJ: You have no authority over Thailand

Jun 06, 2011
By Bangkok Pundit
Asian Correspondant

First, the background to the case, some relevant parts from the ICJ press release on May 2 (PDF) are excerpted below:

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.

…

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.”

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.”

…

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”.

…

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”.

Then, on May 19, 2011, the ICJ issued (PDF) another press release:

The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will hold public hearings in the case concerning the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), on Monday 30 and Tuesday 31 May 2011, at the Peace Palace in The Hague, the seat of the Court.

The hearings will be devoted to the request for the indication of provisional measures filed by Cambodia (see Press Release No. 2011/14).

BP: A copy of the Cambodian application is available from here (PDF) and Cambodia’s rationale for the provisional measures is that “Since 22 April 2011, serious incidents have occurred in the area of the Temple of Preah Vihear, the site of the Request for interpretation recently submitted by Cambodia, as well as at several locations along that boundary between the two States, causing fatalities, injuries and the evacuation of local inhabitants…Serious armed incidents are continuing at the time of filing of the present request, for which Thailand is entirely responsible…. Measures 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”.

As noted above, there are two parts to the new case. First, regarding the provisional measures and second regarding the interpretation of the 1962 decision. The court deliberation and the hearings relate solely to the provisional measures. After the hearings finished on May 31, the ICJ issued another press release (PDF) of which the key part is excerpted below:

The Court’s decision will be delivered at a public sitting, the date of which will be announced in due course.

BP: Given that it took only one month to schedule and hold hearings and the request is for provisional measures only, BP would expect that the decision is likely to be delivered before the July 3 election. In anticipation of the decision, the Bangkok Post has the following:

“Thailand will respect the ICJ’s decision, but the body has no authority to order Thai troops to retreat. Thai soldiers won’t step back from our territory,” Gen Prawit said on the sidelines of the three-day Shangri-La dialogue in Singapore.

…

Gen Prawit said Thailand would only withdraw forces from the disputed area if the ICJ orders Cambodia to do likewise.

The defence minister’s stance was backed by acting government spokesman Panitan Wattanayagorn, who also attended the security forum.

“The ICJ has no authority to force Thailand to withdraw troops,” Mr Panitan said.

If the court demands Thai troops leave the area and Thailand refuses to comply, Mr Panitan said he believes Cambodia would take the case to the United Nations Security Council (UNSC).

The UNSC is responsible for enforcing ICJ orders when a subject country refuses to comply with them.

Foreign Minister Kasit Piromya said upon returning on Thursday from a two-day ICJ oral hearing in the Hague that the court has no enforcement power, but as a good UN member country, Thailand would comply with its decision.

BP: So who speaks for the government Prawit + Panitan or Kasit? Their positions are in conflict. The Thai position is interesting as to quote Thailand’s lawyer (PDF) on the Thai position of the 1962 decision:

Indeed, the Royal Government of Thailand announced its decision to comply with the Judgment on 3 July 1962, by official communiqué. On 6 July 1962, Thailand’s Minister for Foreign Affairs wrote to the United Nations Secretary-General to inform him of that decision. The relevant passage of that letter is now showing on the screen. I quote: “as a member of the United Nations, His Majesty’s Government will honour the obligations incumbent upon it under the said decision in fulfilment of its undertaking under Article 94 of the Charter”1.

BP: So Sarit’s military dictatorship would comply, but Abhisit’s government won’t if the decision goes against them? They would really prefer the UNSC take up the matter? Would that really be better? Now, what if for the upcoming case (i.e not the provisional measures, but the actual decision on the interpretation) that the decision goes in Thailand’s favour and the ICJ rules that the 4.6 sq km is Thai land. What would be the Thai position if Cambodia did not comply? It makes not strategic sense to announce the Thai decision not to comply publicly, but then as The Nation notes:

If the International Court of Justice (ICJ) takes provisional measures as requested by Cambodia and get Thai troops to withdraw from the vicinity of Preah Vihear Temple in the next three or four weeks, it will make the ruling Democrat Party appear to have failed to protect the country’s interests.

BP: So there is concern about the electoral consequences so will other political parties in Thailand take a position? Will Puea Thai now say that a Puea Thai-led government will comply? Or will they wait until the decision is handed down?

btw, one wonders if the judges read the papers and see what members of the Thai government are saying….