Thailand's closing statement on temple case at ICJ

A general view of the start of proceedings in a court room at the International Court of Justice in The Hague.

Dr Virachai Plasai, Thailand’s ambassador to the Netherlands

2/06/2011
Bangkok Post

Allow me to conclude by highlighting two key words that encapsulate Thailand's position towards the subject before us here and the overall relations with Cambodia which flow from Thailand's fundamental commitment to justice and peace that I elaborated on Tuesday. They are: consistency and sincerity.

Consistency

Thailand has been consistent in her position. That position is simply that Thailand did accept the International Court of Justice's judgement in 1962 and fully complied with it, and Cambodia herself did accept that Thailand has given full compliance with the decision.

Thailand has also been consistent in her position that the court in 1962 did not rule on the boundary line. That question was left to be mutually determined in accordance with international law. And as things stand, that question is to be determined, and is being determined, under the existing bilateral mechanism subsequently and mutually established by both countries under the 2000 Memorandum of Understanding. Pending demarcation of the boundary, we have been consistently adhering to the Thai cabinet line of 1962. We did not change our position about the boundary in 2007, or any other time for that matter, as alleged by Cambodia.

Thailand has also been consistent in her position regarding inscription of the Temple of Phra Viharn [Preah Vihear] on the World Heritage List. The temple requires a buffer zone as a World Heritage site, and that can only be found in Thai territory. We understand that, and have always been ready and willing to undertake a joint nomination with Cambodia. It is Cambodia's constant refusal of such joint undertaking that is the root cause of the problems that have arisen over the inscription. As the timeline approaches and the prospect is still uncertain, a "conflict by design" triggering the indication of artificial provisional measures by the court as a backdoor to clear the area for the much-desired buffer zone to be included in the management plan at the World Heritage Committee meeting at the end of this month, is a strategy that Thailand understandably resists.

Sincerity

To portray the relationship between Thailand and Cambodia in terms of an unequal power relationship is wrong and disingenuous. The real picture is that of two neighbouring countries sharing a common border approximately 800 kilometres long, where people engage in peaceful activities everyday throughout the year. This is the fact between peoples of Thailand and Cambodia, a fact that has not changed and will not change.

Therefore, it was regrettable to hear the repeated Cambodian narrative of the weak against the strong.

In this connection, I will deal with some of the Cambodian allegations made yesterday [Tuesday] and this morning [Wednesday] that simply have no basis.

First, there is no such thing as a "secret" map as dramatically claimed by Cambodia's counsel. Thailand has neither secret designs nor territorial ambitions against Cambodia. We only want to keep what is strictly ours under international law, and are ready to resume with good faith and sincerity our bilateral boundary negotiation with Cambodia as soon as possible. It is important to stress once again that the issue of the boundary is not the subject matter of the 1962 judgement, nor does it concern our current proceedings today.

Second, the so-called pagoda [Keo Sikha Kiri Savara pagoda] was not built in 1996 or 1998 as claimed by Cambodia's counsel. It was built years later. And this has been subject to constant protests from Thailand at both local and diplomatic levels.

Third, Cambodia counsel's attempt to portray Thailand as trigger-happy bent on damaging the temple was untruthful and obscured the fact that Cambodia stationed her troops in the temple, using it as a military base to attack Thailand in contravention of the 1954 Hague Convention. Thailand merely acted in self-defence in accordance with the principle of proportionality and directed only at locations from where Cambodia launched its attacks.

And here lies an interesting inconsistency in Cambodia's position. On one hand, the Cambodian prime minister confirmed at the Asean Summit meeting in Jakarta on May 8, that there were no Cambodian troops at the temple, despite photos pointing to the contrary. On the other hand, Cambodia's counsel yesterday did not dispute the existence of Cambodian soldiers at the temple when he argued in favour of Cambodia's refusal to calls for demilitarisation of the temple.

This is not about reclaiming the temple. It is about the respect for the 1954 Hague Convention to which Cambodia is a party. Above all, it is a matter of common sense. The temple must not be a military base.

Fourth, consistent with Thailand's commitment to peace, Thailand has been actively participating in disarmament negotiations, including on the Convention relating to Cluster Munitions, although Thailand is not yet party to it. From this basis, Thailand did not use cluster munitions according to her understanding of the term.

Fifth, Cambodia's counsel claimed that the Thai Parliament completed its internal process concerning the Joint Boundary Commission's agreed minutes on May 1, and that it was completed only because Cambodia had filed its request for interpretation on April 28. The fact is that the internal legal process of Thailand was completed on April 19. On the same day Cambodian senior officials gave a press interview acknowledging this fact. This was well before Cambodia filed its request.

Sixth, Thailand's domestic politics has nothing to do with the issue before us today as claimed by Cambodia's counsel. Thailand is a functioning democracy with a parliamentary system. Matters relating to sovereignty are strictly regulated by Parliament as in many other countries. There is nothing extraordinary about this. Raising the issue of Thailand's political situation by Cambodia cannot be seen other than as a desperate attempt to put together different, unconnected things. Worse, it is irrelevant to the case and to the reality on the ground.

Seventh, the Cambodian civilians living in the immediate surrounding area of the temple have not been living there for a long time, as Cambodia would have the court believe. They were put there on purpose only recently, to serve political motives that are entirely outside the scope of these proceedings.

Eighth, there is no risk of aggravation of the dispute due to Thailand's behaviour, as Cambodia's counsel has attempted to have the court believe. The reality is that, as all the armed incidents that took place were initiated and sometimes even predicted by Cambodia itself, any aggravation could only happen if Cambodia decided to do so.

Ninth, Cambodia's counsel accused Thailand of moving the conflict away from the Phra Viharn Temple to the Ta Kwai and Ta Muen temples, situated about 150 kilometres away, because of the April 28 cease-fire - a cease-fire that Thailand only accepted because the present proceedings were initiated at the Court by Cambodia the same day. The fact is that, first, the April 28 local cease-fire concerns the sector of Ta Kwai and Ta Muen, not the Phra Viharn Temple. How could Thailand, presumably to circumvent a cease-fire, start conflict in a location for which that very cease-fire has been agreed? Moreover, the cease-fire was concluded locally at 08.05 hours local time, that is 03.05 hours in the morning in the Hague; whereas the Cambodian request was filed at the court around 17.00 hours local time on that day, that is some 14 hours after the cease-fire. Cambodia simply contradicts itself in its attempt to mislead the court.

Let me stress that Thailand agreed to the April 28 cease-fire in good faith, regardless of any legal proceedings, only to see it violated some 11 hours after by Cambodia, as if an urgency by design was somehow required to justify the latter's provisional measure request.

In fact, it was Cambodia, not Thailand, who moved the conflict away from the Temple of Phra Viharn to this new location. This is because the situation at Phra Viharn seems to have returned to normality after the February clashes.

At the same time, contrary to Cambodia's assertion, the Asean process of cease-fire negotiations was progressing well, and the bilateral boundary negotiations under the JBC could resume by the last week of April when the Thai internal process for the 3 previous agreed minutes was completed. In this context, Cambodia needed to find something else to portray urgency justifying its provisional measure request.

Tenth, Cambodia's counsel this morning [Wednesday] referred to the incident of April 26. This simply shows the bankruptcy of Cambodia's position. Up until this morning [Wednesday] Cambodia had just made vague allusions about incidents in the temple area, implying that all of the incidents of April-May 2011 occurred there. When it was explained to the court that this was not.

What Cambodia had apparently overlooked was in fact central to its case. But, none of this gets away from the essential point that Cambodia has simply not made a case for any urgency in respect of its request for provisional measures.

The best that Cambodia has been able to do is to paint a vague picture of the past incidents near the Temple of Phra Viharn being a precipitator of incidents elsewhere in the country. Then, the fact of incidents elsewhere in the country means that it is likely that there will be future incidents at the temple - some kind of perverse reverse loop that justifies the court in awarding provisional measures in respect of the area of the temple.

But all of this is conjecture, not based on facts. A real analysis of the facts would ask questions about why Cambodian troops were moved from the Temple of Phra Viharn area to Ta Muen and Ta Kwai just before the attacks by Cambodian troops against Thai forces occurred.

But, of course, none of this sort of conjecture about the relationship of incidents in one part of the country with the possibility of incidents in another part of the country is of assistance to you in deciding this case. The court cannot order provisional measures in respect of the temple area on the basis of some kind of supposition that conflict elsewhere in respect of different temples and a different boundary creates a likelihood of irreparable harm in the area of the temple.

Mr President, distinguished members of the court, at the end of these observations on Cambodia's request for provisional measures, you are left with two simple things to decide:

Are the events relied on sufficient to establish an urgent need to protect rights in dispute from irreparable harm pending the outcome of the interpretation requested?

Is there prima facie jurisdiction in this case for the Court to entertain a request for provisional measures?

In respect of the former, Thailand has demonstrated that there is no basis on which provisional measures could be ordered in this case.

In respect of the latter, Thailand has demonstrated that that there is no dispute between the parties over the meaning or scope of the judgement of 1962. The request for interpretation is an attempt to get the court to determine something that was not decided in 1962. On that basis, not only is there no prima facie jurisdiction, there is simply no justification for moving on to any question of interpretation.

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Ambassador Virachai Plasai is head of the Thai delegation at the International Court of Justice. The above has been excerpted from his closing statement concerning Preah Vihear Temple at the ICJ on June 1, 2011.