Author: Vaishnavi Navghare.
 ICJ Rep 6
NAMES OF PARTIES
PRESENT: President Winiarski, Vice-President Alfaro.
JUDGES: Basdevant, Badaiyi, Moreno Quintana, Wellington koo, Sir Percy Spexder, Sir Gerald Fitzmacrice, Koretsky, Tanaka, Buctamaxte Y Rivero, Mokelli – Registrar Garnier-Coignet.
Disputes between states usually happens on maritime, territory, river, identity, economic, cultural, or other issues. The case of ‘Preah Vihear Temple’ is of territorial dispute between Thailand and Cambodia which is decided on 15 June in ICJ.1 Territorial disputes occur when official representatives of one country make explicit statements claiming sovereignty over a specific piece of territory that is claimed or administered by another country. The Issue Correlates of War (ICOW) Project has identified over 800 territorial disputes globally since 1816.2
The Case of the Temple of Preah Vihear has long been debated since 1960s. The dispute regarding the Temple of Preah Vihear since 1962 challenges not only the ICJ to reinterpret its own 50-year-old Judgement but the conflict between two Association of Southeast Asian Nations (ASEAN) member countries seems as a substantial knockback to solidarity, credibility and dispute settlement mechanism of ASEAN at a time when it had just promulgated the ASEAN Charter.
This case analysis article gives complete information about this case.
Brief About the Location and History of Preah Vihear Temple
Construction of the first temple on the site began in the early 9th century, both then and in the following centuries it was dedicated to the Hindu god Shiva in his manifestations as the mountain gods Sikharesvara and Bhadresvara. The temple complex runs 800m along a north-south axis.3
Preah Vihear Temple is located in a pleasant environment with an attractive countryside slightly east of the mid section of the Dongrek Mountains. It is perched on the edge of a giant cliff, about 625 meters above sea level in Preah Vihear Province, Northern part of Cambodia, 625km from the capital city of Phnom Penh. It is also situated close to the Cambodia-Thai border. The temple can be reached by crossing the Cambodia-Thai gateway border from the Ubon Ratchantani Province of Thailand.4
Facts of Case
The Temple of Preah Vihear (the Temple) is an ancient sanctuary and shire built during the reign of Khmer Empire situated on the borders of Thailand and Cambodia, between the Preah Vihear province of northern Cambodia and the Sisaket province of North-eastern Thailand. The Temple is located on the Dangrek mountain range which roughly forms the boundary between both countries.
In 1904, France (Cambodia, the French Protectorate) and Siam (as Thailand was taken known) entered into a treaty, which stipulated, in Article 1, that the boundary was to follow the watershed along the eastern section of Dangrek Mountains. By virtue of Article 3 of the Treaty, a Franco-Siamese mixed commission (Mixed Commission) wasset up to carry out the actual delimitation of the boundary. By the instruction of the Mixed Commission of 2 December 1906, Captains Oum and Kerler of the Mixed Commission, surveyed and fixed the section of the boundary between Kel pass and the Col de Preah Chambot, which included the area of the Temple.
After that, the Siamese government requested France to prepare and publish maps of the frontier and in 1907 eleven maps were completed and provided to Siam in 1908. One of the maps (referred to as Annex 1 in the Proceedings) showed the Temple in Cambodian territory. As a result, the Siamese members of the Mixed Commission did not approve the French map, but they did not conduct a competing survey or raise a clear objection.
In 1941, Thailand seized Preah Vihear and other part of a wartime alliance with Japan. After returning the territory to France, Preah Vihear again changed hands after the defeat of France colonial forces in 1953; the French troops were withdrawn from Cambodia even this disputes over unsettle boundaries, especially the dispute over the ownership of the Temple of Preah Vihear.
In 1954 Thai troops moved into Preah Vihear to replace the departing French soldiers, however, Cambodia protested and filed suit at the International Court of Justice (ICJ) in The Hague. During the proceeding, Thailand argued that the map presented by Cambodia was inaccurate with regard to the location of the Temple with relation to watershed. The ICJ, however, emphasized in its ruling that Thailand had failed to make any observations about the map in 1907 or subsequently, which amounted to a tacit acceptance of the situation.
As a result, on 15 June 1962, the Court awarded the temple to Cambodia by ruling in the judgment on the merits in the Case Concerning the Temple of Preah Vihear (1962 Judgment) that the Temple is situated in territory under the sovereignty of Cambodia. However, even the Court rendered such judgment but the controversy about the Temple and its vicinity has been longstanding until present. On 28 April 2011, Cambodia filed the Request for interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) to the Court.
In this regard, Cambodia requests the Court to interpret its 1962 Judgment that Thailand’s obligation to withdraw any military or police forces, or other guards or keepers, stationed at the Temple, or in its vicinity on Cambodian territory 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.5
During 15 to 17 April 2013, the hearing 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) to be held by the ICJ the oral arguments in the legal battle between Thailand and Cambodia was presented before the Court at The Hague.
In this regard, the Case challenges the Court to interpret its own judgment held since 1962, more than 50 years ago. In addition, this dispute between two Association of Southeast Asian Nations (ASEAN) member countries mirrors a substantial knockback the ASEAN’s solidarity, credibility and dispute settlement mechanism at a time when it had just promulgated the ASEAN Charter and set the goal to become an ASEAN Community in 2015.6
This case is of International court of justice regarding territorial dispute. 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 International Court of Justice acts as a world court.
The Court’s jurisdiction is twofold. it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases), and it gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or one related organization authorized to make such a request (advisory jurisdiction).
Representation of Kingdoms in ICJ
The case concerning the Temple of Preah Vihear, between The Kingdom of Cambodia, represented by H.E. Tmong Cang, Member of the Haut Conseil du Trône, as Agent, and by H.E. Ouk Chhoum, Minister Counsellor at the Cambodian Embassy in France.
The Kingdom of Thailand, represented by H.S.H. Prince Vongsamahip Jayankura, Ambassador of Thailand to the Netherlands, as Agent.
- Whether the Preah Vihear temple lies in Cambodian territory or Thailand’s territory?
- Under which jurisdiction temple comes?
- Article 60 of ICJ
- Article 98 of ICJ para 1 and 2
- Article 48 cdt, Vienna conventions of law and treaties para 2
Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia and Thailand, were instituted on 6 October 1959 by an Application of the Government of Cambodia; the Government of Thailand halving raised two preliminary objections, the Court, by its Judgment of 26 May 1961, found that it had jurisdiction. In its Judgment on the merits the Court, by nine votes to three, found that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that Thailand was 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.
By seven votes to five, the Court found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities. Judge Tanaka and Judge Morelli appended to the Judgment a Joint Declaration. Vice-President Alfaro and Judge Sir Gerald Fitzmaurice appended Separate Opinions; Judges Moreno Quintana, ‘Wellington Koo and Sir Percy Spender appended Dissenting Opinions.7
Concepts Used in Case
Thailand was stopped by its conduct from claiming that it contested the frontier in the temple area. However, it is to be noted that estoppel in that case was one element in a complexity of relevant principles which included prescription and treaty interpretation. The case also seemed to show that in situations of uncertainty and ambiguity, the doctrines of acquiescence and estoppel come into their own, but it would not appear correct to refer to estoppels as a rule of substantive law.8
The extent to which silence as such may create an estoppel is unclear and much will depend upon the surrounding circumstances, in particular the notoriety of the situation, the length of silence maintained in the light of that notoriety and the type of conduct that would be seen as reasonable in the international community in order to safeguard a legal interest.
The existence of an estoppel should not, however, be lightly assumed.9 Subsequent conduct itself would in the material sense include the examples of the exercise of sovereign activity, various diplomatic and similar exchanges and records, and maps. So far as the status of maps is concerned, this will depend upon the facts of their production as an item of evidence.
It was noted in the Burkina Faso / Mali case that maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.10
RES JUDICATA OR PRECLUSION THERORY
Res judicata or res judicata, also known as claim preclusion, is the Latin term for a matter already judged, and refers to either of two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of a case on same issues between the same parties. In this latter usage, the term is synonymous with issue preclusion.
In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.
2008 UNESCO WORLD HERITAGE AGAIN AROSE THE CONFLICT
Preah vihear to be listed in world heritage in 2008 again make way for the conflict between Cambodia and Thailand. Where Thailand claimed that the Preah vihear lies in the there territory due to this war broke out and many people from both sides were killed.
According to two fold responsibility of UNESCO it was safeguarded. Conflict is not yet over and 2011 Cambodia REQUEST FOR INTERPRETATION FROM 1962 JUDGEMENT OVER ARTICLE 61 OF RULES OF COURT. Later ICJ unanimously decided to reject the application of Thailand to take the case out from general list and also it put many provisions on both as fallows:
- Thailand and Cambodia to demilitarize that area.
- Thailand to give free access to Cambodia
- To have cooperation
- To enter in ASEAN.
Role of ASEAN
Cambodia and Thailand engaged in a border dispute over the Preah Vihear temple. ASEAN played a role in resolving all of these conflicts. ASEAN as a whole could play such a role in the future, not only helps in rebuilding post-conflict states but also in supporting initiatives that advance democratic principles. Tensions on the border escalated that year when both Cambodia and Thailand sent troops to the area and occupied several minor temples. Low-level confrontations led to exchanges of fire on 3 October 2008. In addition to the thousands of displaced civilians who fled the conflict zone, both sides suffered casualties.
The continued deterioration of the security situation at the border required intervention and adroit manoeuvring from both sides in order to de-escalate tensions. Diplomatic efforts sought to dissipate the high tension in the area but progress stalled and the two parties were unable to take advantage of a number of opportunities (e.g. meetings at prime-ministerial level at regional forums, meetings between foreign ministers and other bilateral cooperation sessions) to settle the conflict (International Crisis Group 2011). The volatility of Thai domestic politics in the period 2008–2011 also prevented the issue from being resolved swiftly.11
The dispute regarding the Temple of Preah Vihear since 1962 challenges not only the ICJ to reinterpret its own 50-year-old Judgement but the conflict between two Association of Southeast Asian Nations (ASEAN) member countries seem as a substantial knock back to the solidarity, credibility and dispute settlement mechanism of ASEAN at a time when it had just promulgated the ASEAN Charter.
In my opinion, the ICJ dealt good with this case. All the principles statutes were appropriate. Still the case was not resolved completely or we can say created the havoc between two states. As ICJ has less experience in solving long existing conflict still it managed well to settle the dispute as we just need peace between two states.
- JUDGEMET OF 15 JUNE 1962: I.C.J REPORTS 1962, P.6.
- Sara Mitchell, Territorial Dispute, OXFORD BIBLIOGRAPHIES,(2 July ,2019, 7.24 AM), https://www.oxfordbibliographies.com/view/document/obo-9780199743292/obo-9780199743292-0178.xml
- Source: https://www.worldheritagesite.org/list/Preah+Vihear+Temple
- Source: https://absolutecambodia.com/attractions/preah-vihear/preah-vihear-temple
- kitti Jayangkakula, The impacts of the temple of Preah vihear case towards the Asean community,234-238(2013).
- RAYHANUL ISLAM, Temple of Preah Vihear (Combodia v. Thailand 1962),case international law 10 July 2019, 8.27pm), https://lawhelpbd.com/international-law/temple-of-preah-vihear/.
- ICJ REPORTS, Case Concerning the Temple of Preah Vihear (merits) judgment of 15 June 1962.
- ICJ Reports, 1962, pp. 6, 23; 33 ILR, pp. 48, 62.
- ICJ Reports, 1962, pp. 30–2; 33 ILR, p. 68.
- ICJ Reports, 1986, pp. 554, 582; 80 ILR, p. 440. The Court in the Malaysia/Singapore case, ICJ Reports, 2008, paras. 267–72, noted that a map may give a good indication of the ofﬁcial position of the party concerned, particularly where it is an admission against interest.
- Julio S. Amador III and Joycee A.Teodoro, The role of the association of southeast asian nations in postconflict reconstruction and democracy support 2016, International Institute for Democracy and Electoral Assistance 67-78 (2015).