The Temple of Preah Vihear
ICJ Indicates Provisional Measures in the Case Concerning the Temple of Preah Vihear; Orders Parties to Withdraw Military Forces and Refrain from Military Activity in the Area
On April 28, 2011, the gravity of the recent conflicts over the Temple of Preah Vihear compelled Cambodia to submit a request to the International Court of Justice (ICJ) asking for review of the Court’s that held that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia.
While Thailand recognizes that the Temple itself belongs to Cambodia, it claims that the 1962 judgment never defined a distinct boundary between the two nations and disputes that the territory surrouding the Temple is Cambodian land. Moreover, Thailand claims that the order issued by the Court in that case manding Thailand to remove military troops from the vicinity of the Temple was only an “instantaneous” obligation with which Thailand once complied. Thus, its restationing of troops near the Temple in 2011 did not violate the ICJ’s directive. Maintaining that there was no actual dispute related to the 1962 judgment, Thailand requested the ICJ remove the case from the General List of the Court.
According to Cambodia, a statement in the 1962 judgment recognizing Thailand’s “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” indicated that the ICJ acknowledged Cambodia’s sovereignty over the disputed area. Cambodia claims that the “vicinity” phrase would not have been used unless the Court intended to define a legally-enforceable border. In addition, Cambodia asserts that because the 1962 judgment ordered Thailand to remove its troops from the Temple and the surrounding ter- ritory, the ICJ had indeed recognized that the disputed area was included within Cambodia’s boundaries.
The Court, however, unanimously rejected Thailand’s request for removal and instead found jurisdiction over the matter under Article 60 of the Statute of the Court, which allows the ICJ to resolve disputes based on the “meaning or scope” of operative language in a previously issued judgment. The Court determined that the difference of opinion stemming from operative language in the phrase “vicinity on Cambodian territory” required clarification.
The ICJ also found authority to issue provisional measures based on the sense of urgency surrounding the situation, and did so on July 18, 2011. The Court focused on the perceived fragility of the situation along the frontier, noting that “the persistent tensions and absence of a settlement to the conflict” could result in the loss of human life, bodily injuries, and the displacement of local people. This presented a “real and imminent risk” of irreparable damage that might be inflicted on the Temple itself, a UNESCO World Heritage site. By vote of 11 to 5, the ICJ established a temporary demilitarized zone and commanded both Cambodia and Thailand to immediately withdrawal military personnel from the area. By vote of 15 to 1, the ICJ requested that Thailand not obstruct Cambodia’s nonmilitary access to the site. By another vote of 15 to 1, the ICJ asked both nations to continue cooperation with the Association of Southeast Asian Nations (ASEAN). In a final vote of 15 to 1, the ICJ also requested that both parties avoid any action that might aggravate the dispute or impede its resolution. In addition, the ICJ asked the two nations to provide updates to the Court regarding their efforts to comply with the measures while the judges continue to deliberate the interpretation request.
The ICJ reminded both parties that the provisional measures issued in no way prejudge the final conclusion the Court, and that the ultimate resolution will come only with the ICJ’s official interpretation of the “meaning and scope” of the 1962 judgment.
Judge Donoghue, who opposed every provisional measure issued by the Court, based his dissent on the grounds that such measures exceeded the ICJ’s authority under Article 60. He argued that the Court’s power under Article 60, which relates to resolving disputes over previously issued judgments, was much narrower than its power under Article 36, which relates to adjudicating regular cases brought before the ICJ. Furthermore, Judge Donoghue indicated that even if the Court had authority to issue some provisional measures under Article 60, the particular measures imposed in this case surpassed that authority. Moreover, Judge Donoghue expressed concern that the provisional measures would “chill the willingness of States to consent to the Court’s jurisdiction.”
The Court must now interpret its 1962 ruling, and its judgement on that matter should be expected next year. * Submitted by Kristen Klump
ILSA Quarterly » volume 20 » issue 1 » October 2011
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