Preah Vihear - a matter of shared responsibility

In this photo taken on July 6, 2011, a Cambodian police officer stands near the 11th century Hindu temple of Preah Vihear.

2/08/2011
Vitit Muntarbhorn
Bangkok Post

Any discussion of the recent decision of the International Court of Justice on the request for provisional measures concerning a dispute surrounding an ancient temple, which has been a bone of contention between Thailand and Cambodia for ages, is likely to raise emotions and passions in this region.

While some will debate on the question of "who won", "who lost", the preferred way ahead is to aim for greater rationalisation and see the issue as a matter of shared responsibility for all.

The dispute dates back to the World Court's decision in 1962, with the presence of 12 judges voting as follows:

"The Court, by nine votes to three, finds that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia;

"Finds in consequence, by nine votes to three, 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;

"Finds, by seven votes to five, 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 occupation of the temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities."

Basically, the Court repudiated Thailand's claim over the temple. The Court found that the country was "estopped" by its own conduct from rejecting a map dating back to colonial times; the Court viewed this map as indicating that the temple belonged to Cambodia.

In retrospect, it is interesting to note that the Court's decision was three-pronged, as seen in what is known as the three "operative clauses/paragraphs" above. Interestingly, these covered the last three of the five submissions, rather than all five submissions, originally put by Cambodia to the Court and which read as follows:

"May it please the Court:

1. To adjudge and declare that the map in the Dangrek sector (Annex I to the Memorial of Cambodia) was drawn up and published in the name and on behalf of the Mixed Delimitation Commission set up by the Treaty of 13 February 1904, that it sets forth the decisions taken by the said Commission and that, by reason of that fact and also of the subsequent agreements and conduct of the Parties, it presents a treaty character;

2. To adjudge and declare that the frontier line between Cambodia and Thailand, in the disputed region in the neighbourhood of the Temple of Preah Vihear, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (Annex I to the Memorial of Cambodia);

3. To adjudge and declare that the Temple of Preah Vihear is situated in territory under the sovereignty of the Kingdom of Cambodia;

4. To adjudge and declare that the Kingdom of Thailand is under an obligation to withdraw the detachments of armed forces it has stationed, since 1954, in Cambodian territory, in the ruins of the Temple of Preah Vihear;

5. To adjudge and declare that the sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which have been removed from the Temple by the Thai authorities since 1954 are to be returned to the Government of the Kingdom of Cambodia by the Government of Thailand."

Basically, therefore, the Court's judgement did not delve into the first two submissions of Cambodia. It did not declare that the disputed map established the frontier line between the two countries.

In international law, it is to be noted that in regard to contentious proceedings between states, the World Court has jurisdiction over a dispute only where both parties consent to use the Court; the Court has no power to compel a state to use the Court. Both countries above consented to the Court's jurisdiction in the temple case. However, once consent by a state is given to the Court in regard to a particular case, the Court retains the power to interpret its judgement in regard to that case, even subsequently without a time limit.

This is witnessed by Article 60 of the Court's Statute which provides that "in the event of dispute as to the meaning and scope of the judgement, the Court shall construe it upon the request of any party".

It is thus this context which has led to the recent request by Cambodia to the Court to interpret the 1962 judgement and also to indicate provisional measures, pending the Court's interpretation of that judgement.

The recent case in 2011 related to the provisional measures, while the request for interpretation of the 1962 judgement has yet to be dealt with by the Court. Generally, the Court will only order provisional measures if there is a risk of irreparable harm to one of the parties.

Even though Thailand asked the Court to dismiss the request for provisional measures, the Court proceeded to decide as follows, with 16 judges voting, two of whom were ad hoc judges chosen by the two countries specifically for the case:

"The Court,

(A) Unanimously,

Rejects the Kingdom of Thailand's request to remove the case introduced by the Kingdom of Cambodia on 28 April 2011 from the General List of the Court;

(B) Indicates the following provisional measures:

(1) By eleven votes to five,

Both Parties shall immediately withdraw the military personnel currently present in the provisional demilitarised zone, as defined in paragraph 62 of the present Order, and refrain from any military presence within that zone and from any armed activity directed at that zone;

(2) By fifteen votes to one,

Thailand shall not obstruct Cambodia's free access to the Temple of Preah Vihear or Cambodia's provision of fresh supplies to its non-military personnel in the Temple;

(3) By fifteen votes to one,

Both Parties shall continue the cooperation which they have entered into within Asean and, in particular, allow the observers appointed by that organisation to have access to the provisional demilitarised zone;

(4) By fifteen votes to one,

Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve;

(C) By fifteen votes to one,

Decides that each Party shall inform the Court as to its compliance with the above provisional measures;

(D) By fifteen votes to one,

Decides that, until the Court has rendered its judgement on the request for interpretation, it shall remain seised of the matters which form the subject of this Order."

The Court thus took a proactive approach in imposing on the parties a map with the provisional demilitarised zone. It also underlined in its reasoning that its orders on provisional measures have binding effect, creating legal obligations. It even cited to support its rationalisation earlier cases decided upon by the Court in regard to disputes between other countries, such as a case between Germany and the United States on access by nationals to consular protection ("Lagrand case") and another case on armed activities between the Democratic Republic of the Congo and Uganda. However, the Court has no power to sanction against parties that fail to abide by the Court's order. This will depend upon other international channels, particularly the power of the United Nations Security Council.

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Vitit Muntarbhorn is a Professor at the Faculty of Law, Chulalongkorn University. He has helped the UN in a variety of capacities, including as an expert, consultant and Special Rapporteur. All views expressed in this article are personal. This is the first of a two-part article, the second of which will be published tomorrow.