Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand)
Posted by on Jan 8, 2013 in Khon Kaen Retirement, Thailand

The People’s Alliance for Democracy, better known as Yellow Shirts, are elite Bangkokians with their own personal agenda in the case of Preah Vihear.

Numerous stories have been printed in the almost English online dailies with the Yellow Shirts calling on the Thai Government to flat out reject the upcoming October ruling on Preah Vihear from the International Court of Justice (ICJ). Idiots.

Thailand Minister of Foreign Affairs Surapong - Preah Vihear

Thailand Minister of Foreign Affairs Surapong – Preah Vihear

This is how the elite Bangkokians play.  When they can’t get their way, they take their ball and go home.  If the International Court of Justice doesn’t rule favorably on Preah Vihear for Thaialnd, the Yellow Shirts want the Thai Government to just reject the ruling claiming the ICJ has no jurisdiction.

Tired of reading all the misinformation and biased interpretations in the online media, I went straight to the source – the International Court of Justice and their list of pending cases, including Preah Vihear.  But first, to counter the Yellow Shirts’ claim that the International Court of Justice has no jurisdiction let’s look at exactly what the ICJ does.

The Court

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946.

The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America).

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

So, if you are a member of the United Nations, and there is a dispute like the land surrounding Preah Vihear, the ICJ handles it.  Period.

If the Yellow Shirts would take the time to read how the ICJ works, they would know that:

After the oral proceedings the Court deliberates in camera and then delivers its judgment at a public sitting. The judgment is final, binding on the parties to a case and without appeal (at most it may be subject to interpretation or revision). Any judge wishing to do so may append an opinion to the judgment.

So, as charter members of the UN, Thailand and Cambodia have to abide by the Preah Vihear ruling. Period.

By signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the Court in a case to which it is a party. Since, furthermore, a case can only be submitted to the Court and decided by it if the parties have in one way or another consented to its jurisdiction over the case, it is rare for a decision not to be implemented. A State which contends that the other side has failed to perform the obligations incumbent upon it under a judgment rendered by the Court may lay the matter before the Security Council, which is empowered to recommend or decide upon the measures to be taken to give effect to the judgment.

Thailand had its chance to resolve this issue on Preah Vihear before it got this far but turned down the offer of a UN mediator wanting to resolve it directly with Cambodia.  Cambodia played it smart, knowing it holds all the aces, and submitted a request for World Heritage status for Preah Vihear.

Taking a look at an earlier Preah Vihear summary by the ICJ – Summary of the Order of 18 July 2011

The Court begins by recalling that, in its Application, Cambodia invokes the first paragraph of the operative clause of the 1962 Judgment, in which the Court declared that “the Temple of Preah Vihear [was] situated in territory under the sovereignty of Cambodia”. The Court notes Cambodia’s argument whereby it “could not have reached such a conclusion if it had not first recognized that a legally established frontier existed between the two Parties in the area in question”. It also recalls that the Applicant implies that, in the reasoning of the 1962 Judgment, the Court considered that the two Parties had, by their conduct, recognized the line on the map in Annex I to Cambodia’s Memorial (hereinafter the “Annex I map”), a map drawn up in 1907 by the Franco-Siamese Mixed Commission, as representing the frontier between Cambodia and the Kingdom of Thailand (hereinafter “Thailand”) in the area of the Temple of Preah Vihear. It also observes that Cambodia invokes the jurisprudence of the Court whereby, “while in principle any request for interpretation must relate to the operative part of the judgment, it can also relate to those reasons for the judgment which are inseparable from the operative part”.

This is  Thailand crying over spilled milk.  The Preah Vihear decision was made in 1962 and agreed upon by Thailand. The part Thailand disagrees with now is – “the Temple of Preah Vihear [was] situated in territory under the sovereignty of Cambodia” – claiming that the Preah Vihear temple belongs to Cambodia, but the 4.6 square kilometers of land belongs to Thailand.  Ridiculous.

“Given that ‘the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia’ (first paragraph of the operative clause), which is the legal consequence of the fact that the Temple is situated on the Cambodian side of the frontier, as that frontier was recognized by the Court in its Judgment, and on the basis of the facts and legal arguments set forth above, Cambodia respectfully 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’ (second paragraph of the operative clause) 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 Annex I map, on which the Judgment of the Court is based.”

This was requested after the former administration sent troops to the Preah Vihear area, and many were killed or injured defending “Thai sovereignty”. The troops are still there despite the UN telling both sides to immediately withdraw from Preah Vihear 1 1/2 years ago.

Thailand tried to get the ICJ to throw the Preah Vihear case out, but was told:

Having concluded that “a dispute thus appears to exist between the Parties as to the meaning or scope of the 1962 Judgment, and [that it] therefore appears that the Court may, pursuant to Article 60 of the Statute, entertain the request for interpretation of the said Judgment submitted by Cambodia”, the Court considers, “in consequence, [that it] cannot accede to the request by Thailand that the case be removed from the General List” and that “there is a sufficient basis for [it] to be able to indicate the provisional measures requested by Cambodia, if the necessary conditions are fulfilled”.

This is the crux of Cambodia’s Preah Vihear claim:

The Court then recalls that, “in the operative clause of its 1962 Judgment, [it] declared in particular that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia, and that Thailand was under an obligation to withdraw any military forces stationed at the Temple or in its vicinity on Cambodian territory”. It notes that “the interpretation of the 1962 Judgment put forward by Cambodia in order to assert its rights ? namely, the right to respect for its sovereignty in the area of the Temple of Preah Vihear and its right to territorial integrity ? is that the Court was only able to reach these conclusions once it had recognized the existence of a frontier between the two States and found that the Temple and its ‘vicinity’ were on the Cambodian side of that frontier”. Cambodia claims that the phrase “vicinity on Cambodian territory” includes the area surrounding the precincts of the Temple and that consequently “Thailand has a continuing obligation not to infringe Cambodia’s sovereignty over that area”.

I have no idea how Thailand thinks Preah Vihear is on Thai soil other than claiming that the 1907 Preah Vihear map, which was accepted by Thailand originally, is now not a legal document.

In the latest International Court of Justice Preah Vihear Press Release, Court to hold public hearings from Monday 15 to Friday 19 April 2013:

THE HAGUE, 29 November 2012. 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) from Monday 15 to Friday 19 April 2013, at the Peace Palace in The Hague, the seat of the Court.

This is the Preah Vihear Press Release that has stirred up the saber rattling from the Yellow Shirts.  Foreign Minister Surapong came out and said that Thailand needed to be prepared to lose the case.  This pissed off the Yellow Shirts who then proceeded to submit seven demands to the current Thai Government, threatened to sue Khun Surapong, and have scheduled a rally for 21 January 2013.

During the first round of public Preah Vihear hearings Thailand had this to say:

During those hearings, Thailand maintained, inter alia, that there was no dispute as to the meaning or scope of the 1962 Judgment; that it did not dispute the fact that the Temple of Preah Vihear was situated in Cambodian territory, as recognized in the first paragraph of the operative clause of that Judgment; it claimed furthermore not to dispute the fact that Thailand was under an obligation, pursuant to the second paragraph of the operative clause of the said Judgment, to withdraw its military forces from the Temple or from its vicinity in so far as those forces were situated in Cambodian territory; it asserted that this “instantaneous” obligation had been fully met by Thailand and could not give rise to an interpretative judgment; and Thailand maintained, in consequence, that the Court manifestly lacked jurisdiction “to rule on Cambodia’s Request for interpretation” and, therefore, to indicate the provisional measures requested by the Applicant.

The claim that the ICJ doesn’t have jurisdiction over Preah Vihear has been tried and failed.  Guess the Yellow Shirts can’t read or won’t accept.

At the end of its second round of oral observations, Cambodia reiterated its request for the indication of provisional measures. The Agent of Thailand, for his part, made the following submissions on behalf of his Government: “In accordance with Article 60 of the Rules of Court and having regard to the Request for the indication of provisional measures of the Kingdom of Cambodia and its oral pleadings, the Kingdom of Thailand respectfully requests the Court to remove the case introduced by the Kingdom of Cambodia on 28 April 2011 from the General List.”

Typical Thailand – no basis to have the Preah Vihear case removed.

On 18 July 2011, the Court made its Order on the request for the indication of provisional measures submitted by Cambodia. It first noted that “there appear[ed] prima facie to exist a ‘dispute’” between the Parties as to the meaning or scope of the 1962 Judgment, and concluded that it could not accede to Thailand’s request that the case introduced by Cambodia be removed from the General List. It then indicated various provisional measures. The Court also decided that each Party should inform the Court as to its compliance with those provisional measures and that, until the Court had rendered its judgment on the request for interpretation, it would remain seised of the matters which formed the subject of the Order (see the Court’s 2010-2011 Annual Report).

The International Court of Justice told Thailand – tough shit – we have jurisdiction over Preah Vihear.

The ICJ gave both parties the opportunity to submit additional information on Preah Vihear and that will be heard in April.

And, for those elite, Bangkokian, Yellow Shirt idiots – you need to read and understand that the International Court of Justice is the highest court in the world and Thailand cannot just reject their decision on Preah Vihear.

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. Independent of the United Nations Secretariat, it is assisted by a Registry, its own international secretariat, whose activities are both judicial and diplomatic, as well as administrative. The official languages of the Court are French and English. Also known as the “World Court”, it is the only court of a universal character with general jurisdiction.

The ICJ, a court open only to States for contentious proceedings, and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other ? mostly criminal ? judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court, established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an independent judicial body composed of Lebanese and international judges, which is not a United Nations tribunal and does not form part of the Lebanese judicial system), or the Permanent Court of Arbitration (PCA, an independent institution which assists in the establishment of arbitral tribunals and facilitates their work, in accordance with the Hague Convention of 1899).

The Preah Vihear decision, when made by the International Court of Justice in October, will be binding and without appeal.

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