12667*
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING THE REQUEST FOR INTERPRETATION OF THE JUDGMENT OF
15 JUNE 1962 IN THE CASE CONCERNING THE TEMPLE OF PREAHVIHEAR
(CAMBODIAv. THAILAND) (CAMBODIA v. THAILAND)
RESPONSE OF THE KINGDOM OF CAMBODIA
VOLUME I
8 MARCH 2012
[Translation by the Registry]
*
Reissued for technical reasons. T ABLE OF CONTENTS
Page
C HAPTER 1 INTRODUCTION ............................................................................................................... 1
A. Cambodia’s Request................................................................................................................. 2
B. Thailand’s confusion................................................................................................................ 2
1. Interpretation and execution are not the same thing............................................................ 2
2. An interpretation is not an appeal or a revision................................................................... 4
3. Events subsequent to the Judgment cannot alter the meaning or scope of the
Judgment............................................................................................................................. 5
4. Recognition of a pre-existing frontier is not delimitation or demarcation........................... 6
5. The missing argument.......................................................................................................... 6
6. Summary.............................................................................................................................. 8
C. Scheme of the Response........................................................................................................... 8
C HAPTER 2 FACTS SHOWING THAT CAMBODIA HAS NEVER AC CEPTED T HAILAND ’S
UNILATERAL INTERPRETATION ..................................................................................................... 9
A. Introduction.............................................................................................................................. 9
B. Legal importance of the facts subsequent to the Judgment.................................................... 11
C. Thailand’s unilateral interpretation of the Judgment and Cambodia’s reaction..................... 14
1. Events from 1962 to 1970.................................................................................................. 14
2. Events between 1970 and 2007.......................................................................................... 26
3. Resurgence of the dispute in 2007..................................................................................... 29
D. Conclusions............................................................................................................................ 35
C HAPTER 3 JURISDICTION AND ADMISSIBILITY : A LL OF THE CONDITIONS GOVERNING THE
C OURT ’S ABILITY TO INTERPRET A JUDGMENT ARE MET ............................................................ 36
A. There is a dispute as to the meaning and scope of a judgment by the Court.......................... 36
1. Existence of a dispute ........................................................................................................ 36
2. The dispute concerns the meaning and scope of the 1962 Judgment ................................ 37
B. The Request is admissible...................................................................................................... 41
1. The Request is not time -barred, and Cambodia has never renounced its right to
request an interpretation.................................................................................................... 41
2. Cambodia’s Application does not seek to resubmit a request that has already been
declared inadmissible........................................................................................................ 42
C HAPTER 4 T HE NECESSARY INTERPRETATION OF THE R EQUEST SUBMITTED BY CAMBODIA ....... 44
A. Construction of the dispositif in light of the essential grounds of the Judgment of
15 June 1962.......................................................................................................................... 44
1. The function of a judgment’s reasoning ............................................................................ 44 - ii -
2. An essential ground having a binding normative value..................................................... 46
(a) An essential ground.................................................................................................... 46
(b) A ground with binding normative value..................................................................... 49
B. Construing the dispositif in light of the essential grounds: extensive and consistent
case law across international courts....................................................................................... 51
1. The necessary reading of the dispositif in the light of the essential ground in the
1962 Judgment.................................................................................................................. 51
2. Case law which began under the Permanent Court of International Justice and has
continued under the present Court.................................................................................... 52
3. Case law that has spread to arbitral tribunals and other international courts..................... 55
C. Meaning and scope of the Judgment of 15 June 1962............................................................ 59
1. The interpretation requested by Cambodia........................................................................ 59
2. Thailand’s incorrect interpretation of the Judgment.......................................................... 60
(a) Interpreting is not revising ......................................................................................... 60
(b) The lack of precision regarding the disputed area, according to Thailand............... 62
(c) The distinction, according to Thailand, between a territorial dispute and a
frontier dispute ........................................................................................................... 63
(d) Thailand’s establishment of a unilateral frontier following the 1962 Judgment........ 66
(e) Thailand’s confusion between the delimitation and demarcation of the frontier....... 67
(f) Thailand’s obligation to withdraw is a continuing one.............................................. 69
C HAPTER 5 C ONCLUSIONS .............................................................................................................. 72
L IST OF ANNEXES ............................................................................................................................. 76 C HAPTER 1
1
INTRODUCTION
1.1. These Observations have been submitted in accordance with the decision by the Court
referred to in the Registry’s letter dated 24November 2011. They represent Cambodia’s Response
to Thailand’s extensive Observations of 21 November 2011 (“the Observations” or “the T hai
Observations”), which were submitted by Thailand in response to Cambodia’s Request for
interpretation (“the Request” or “the Application”), lodged with the Court on 28 April 2011. Out
of respect for the Court, this Response will be more concise, and l imited to the essential issues on
which the Parties have differing views, with particular emphasis on the question of interpretation
that Cambodia has submitted to the Court. In other words, Cambodia does not intend to respond to
all of the allegations ma de by Thailand, the majority of which were repeated in a muddled manner
throughout those Observations. The fact that it is not responding directly to each of Thailand’s
arguments or allegations cannot, however, be interpreted as recognition that the argum ents or
allegations in question are well-founded.
1.2. For reasons best known to itself, Thailand also annexed to its Observations numerous
documents which would be better suited to new proceedings on the merits than interpretation
proceedings. What is m ore, those extensive annexes are of no relevance to the question of
interpretation before the Court. Cambodia does not intend to follow suit and will, to a large extent,
rely on the information contained in the documents annexed to the Thai Observations. Those
documents will be supplemented where necessary in order to provide a sufficiently precise picture
of the facts. That is the purpose of the documents in Volume 2 of this Response.
1.3. Cambodia considers it necessary, at the outset, to draw attenti on to certain unusual and
troubling aspects of this case which have emerged from both the oral arguments in respect of the
Request for the indication of provisional measures and now the Thai Observations.
(i) These proceedings concern a Request for interp retation made by the Party that won the
initial case (i.e.,Cambodia) against the losing Party (i.e., Thailand), the latter having been
extremely reluctant to accept the Judgment of the Court at the time — and remaining so
today — as can be seen from Thail and’s conduct and declarations during the period in
question.
(ii) The losing Party claims that it is entitled to interpret the effects that the Court’s Judgment
2 has on it and to impose that interpretation, by force, on the ground, and then to claim, on
that basis, that there is no dispute.
(iii) That unilateral interpretation is being brandished before the Court as the product of a
formal decision taken, it seems, by Thailand’s Council of Ministers following the Court’s
1962 Judgment. However, that de cision has not been annexed to the Thai documents in
these proceedings, has not been communicated to Cambodia, and has not even been made
public. While Thailand did produce a unilateral map in 1962, which was submitted prior
to the oral arguments at the time of Cambodia’s Request for the indication of provisional
measures and was intended to reflect the decision taken by the Council of Ministers,
Thailand has not relied on that map in its Observations. Moreover, in 2007 Thailand
published a new map, marked “S ECRET ”, which was materially different from that used in
the initial proceedings of 1959- 62 and covered more territory on the basis of a new
“watershed” line. - 2 -
(iv) The Thai Observations are merely a scarcely veiled attempt to convince the Court that i t
committed an error in 1962 and that this should be corrected in 2012, notably by revising
or reconsidering the Judgment under the guise of interpreting it.
1.4. Thailand’s conclusions appear on pages 281-286 of its Observations. Thailand’s
three main conclusions are: (a) that there is no dispute between it and Cambodia as regards either
the first or the second paragraph of the dispositif of the Judgment of the Court of 15 June 1962
(“the 1962 Judgment”); (b) that the 1962 Judgment had in no way establ ished that the line on the
map in Annex I represented the frontier between Cambodia and Thailand, whether in the vicinity of
the Temple of Preah Vihear or more generally; and (c) that the Court should also take account of
the fact that the line on the map in Annex I has technical failings that would make it difficult to
transpose on the ground.
3 1.5. All of these main conclusions are, to varying degrees, erroneous, distorted or irrelevant
to these proceedings before the Court. Before responding in detail , Cambodia considers it
necessary to make a number of general observations.
A. Cambodia’s Request
1.6. Cambodia asks that the Court consider the substance of its Application as submitted to
the Court, not as reinterpreted by Thailand for its own purposes. Consequently, when Cambodia
asserts that it is seeking not the revision or enforcement of the 1962 Judgment, but rather an
authentic interpretation of the Judgment, that should be regarded as the sole purpose of these
proceedings.
1.7. Cambodia reasser ts the substance of its Request as submitted to the Court on
28 April 2011, while pointing out that the Thai Observations reveal t1e existence of an even clearer
dispute regarding the meaning and scope of the 1962 Judgment . Moreover, the Application
contains detailed and reasoned arguments in support of Cambodia’s Request for the interpretation
of the Judgment. The primary objective of this Response is, therefore, to refute the objections
raised by Thailand, not to restate the arguments already set outni the Application.
B. Thailand’s confusion
1.8. Certain fundamental misunderstandings are reiterated in the Thai Observations,
revealing (among other things) a simple inability to comprehend the relationship between the
interpretation of a judgment and other issues that may arise in relation to that judgment. Moreover,
Thailand confuses the identification of an existing frontier with its delimitation or demarcation on
the ground. Some of these misunderstandings are largely of a procedural nature, while others relate
more to the substance of the case.
4 1. Interpretation and execution are not the same thing
1.9. The existence of a dispute between parties regarding the interpretation of a judgment
rendered by the Court in a contentious case may simply become apparent in the course of verbal or
written communication. The dispute may, therefore, be a direct result of an exchange of views or
declarations serving to show the parties’ differing perceptions as to the meaning and scope of that
1See paras. 3.3-3.15, infra. - 3 -
judgment or the dema nds that it makes of the parties. However, the existence of such a dispute
may also become apparent in an indirect way when one or both parties (or a party considering that
it has the right to do so) take(s) action of some kind, claiming to be complying with the
requirements laid down by the Court. Examples of these two scenarios can be found in this case
and will be addressed further in Chapter 2. Consequently, such a situation may give rise to both a
question of interpretation and a question of executi on. That said, the fact that these two questions
arise simultaneously in relation to the same subject -matter does not alter their essential nature: a
question of interpretation remains a question of interpretation, and a question of execution remains
a question of execution. It does not take vast amounts of logic to understand that the faithful and
necessary implementation of a judgment pre2upposes a precise and appropriate understanding of
what that judgment means and requires . We should remember, therefore, what Cambodia stated in
its Application :
“Cambodia wishes to make it very clear that, through this Application , it is in
no way seeking any means of forced compliance with the 1962 Judgment. As will be
explained below, Cambodia is only seeking an explanation from the Court itself of the
real significance of the meaning and scope of its Judgment, within the limit laid down
by Article 60 of the Statute, which would be binding on Cambodia and Thailand and
could then serve as a basis f4r a final resolution of this dispute through negotiation or
any other peaceful means.”
1.10. In other words, Thailand cannot escape the mechanism laid down in Article 60 of the
Statute of the Court, much less the rights that Article 60 affords a party in a case befor e the Court,
5 by unilaterally re -characterizing Cambodia’s Application without any justification. Cambodia
takes this opportunity solemnly to reassert the substance of paragraph 31 of its Application, as set
out above. The Court’s interpretation will inde ed form the starting -point for execution, but the
interpretation will not take the place of execution. If the Court agrees to interpret the Judgment in
the way that Cambodia wishes, it will be implemented by peaceful means on the basis of a mutual
agreement that is already in existence: the Memorandum of Understanding of 14 June 2000 (“the
MoU”) on the demarcation of the frontier between the two States. Consequently, Cambodia
requests that the Court provide an authentic interpretation of its Judgment in the hope — and
hoping, too, for good faith on the part of its neighbour — that an appropriate mutual understanding
of the Judgment will open the door to the final resolution of the recurrent implementation problems
seen since the Court renderedthat Judgment.
[1.11.] Be that as it may, Thailand’s understanding of Cambodia’s Application is confused
and contradictory. At times, it accuses Cambodia of seeking the enforcement of the
1962 Judgment, rather than an interpretation of it. At other times, it accus es Cambodia of an
underhand attempt to have the Court issue a decision favourable to Cambodia that it did not
manage to obtain at the time. Not only are these two arguments different from one another, they
contradict each other. It would be entirely irra tional for Cambodia to seek the enforcement of the
Judgment if its meaning and scope and the implications thereof were in dispute. Conversely, given
that the meaning, scope and implications of the Judgment are in dispute, requesting clarification of
the disputed issues cannot, by definition, constitute an application aimed at obtaining new decisions
on matters that the Court has not previously ruled on. As has already been stated , Thailand’s
2
In effect, Thailand accepts this, as it seeks to insinuate that the Judgment was implemented with the consent of
the two Parties, so the Parties cannot be in dispute regarding its interpretation. This will be discussed in Chap.2, infra.
3Application, para.31.
4See also para. 17 of the Application: “It has become obvious to Cambodia that, as long as this difference of
interpretation persists and remains unresolved, there is unlikely to be any prospect of achieving a mutually agreed
solution within the framework of bilateral negotiations.” Thailand’s argument, in paras. 4.71-4.72 of the Observations,
that the reiteration of this explicit objective of Cambodia’s Application indicates the precise opposite is simply bizarre. - 4 -
position on the issue of execution versus interpretation is extremely worrying, given its profound
implications. Indeed, it appears that Thailand is basing its position on the following reasoning:
(a) the Judgment requires Thailand to interpret its effects; (b) Thailand has, in fact, decided on its
interpretation of the effects of the Judgment and has imposed that interpretation on the ground 5;
and (c) consequently, everything that follows is a matter of execution or implementation and
cannot relate to interpretation. That confusion is remarkable. One can see that such a line of
reasoning would doubtless be appropriate in giving substance to a case in which a party interprets a
judgment in bad faith or, in the most extreme of situations, a case in which a party knowingly
decides to defy a judgment under the guise of an interpretation . Where such a proposition is
advanced by the losing party in proceedings before the Court, the implications are particularly
shocking.
2. An interpretation is not an appeal or a revision
6
1.11. Thailand’s position contains a major int ernal contradiction: even where it seeks to
encourage the Court to conduct a legal assessment of the conduct of the Parties following the
Judgment, Thailand seeks at the same time to limit the scope of the Judgment by referring to
submissions made by the Parties prior to the Judgment at the written and oral stages. More than
one third of the Thai Observations are devoted to detailed analysis — step by step — of the
successive submissions made by the Parties, culminating in the 1962 Judgment. The purpose of
this exegesis remains unclear. In the context of appeal or revision proceedings, it is conceivable
that a court’s decision might be challenged on the basis that it was ultra petita. However, a party
cannot challenge a judgment by the International Court of Justice on the basis that it was
ultra petita, be it 50 years after the fact or later , and certainly not in response to a request for
interpretation. The judgment is what it is. Its scope and reasonableness are not subject to
ex post facto assessment by the parties. The objective of a request for interpretation is to ask what
the Court wanted to say, not what the parties want to have the Court say.
1.12. Moreover, a judgment by the Court is final and is not subject to appeal. When drafting
its judgments, it falls to the Court — and the Court alone — to determine the issues that need to be
taken into account, the issues that need to be resolved before it can arrive at its final decision, and
the manner in which it will handle those issues in the dispositif of its judgment. It falls to the
Court — and the Court alone — to determine the grounds underlying its judgment and the terms in
which those grounds are explained in the judgment. In so doing, the Court must also determine,
where necessary, the extent to which it should follow the arguments employed by the parties in
their submissions . Cambodia is relying on the Court’s clear grounds in South West Africa , in
which reference was made to “the recognized right of the Court, implicit in paragrap7 2 of
Article 53 of its Statute, to select proprio motu the basis of its decision” . So, to sum up, the
Judgment of the Court stands alone. It is autonomous and must be interpreted on its own terms, not
with reference to external sources. This principle applies in full to the scope of the Judgment, as
well as to the interpretation of its specific grounds and other elements contained therein. If the true
7 intention of Thailand’s argument is to claim that in 1962 the Court made an error or went too far,
that is quite simply inadmissible.
5
See Chap. 2, infra.
6The Court may choose to base its judgments on arguments not raised by the parties. See, for example, Oil
Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.Reports 2003, p. 180, para. 37, in
which reference is made (citing Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment,
I.C.J. Reports 1958, p. 62) to the C ourt’s “freedom to select the ground on which it will base its judgment”. See also
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, separate
opinion of Judge ad hoc Franck, p. 654, para. 7.
7South West Africa (Ethiopia v. South Africa), Second Phase, Judgment, I.C.J. Reports 1966 , p. 19, para. 8. See
Chap. 4, infra. - 5 -
3. Events subsequent to the Judgment cannot alter the meaning or scope of the Judgment
1.13. Additionally, in the light of the Thai Observations, it is clearly necessary for Cambodia
to return, in these proceedings, to the question of the relevance of facts subsequent to the issuing of
the 1962 Judgment. During the oral argument at the time of Cambodia’s Request for the indication
of provisional measures, it was accepted by the Parties that (apart from the existence of a di spute)
facts subsequent to the Judgment do not constitute relevant substantive aspects of the case for the
purposes of the interpretation. The Court is respectfully invited to consult the two Parties’ oral
arguments on this matter during the proceedings r elating to the provisional measures . However, 8
Thailand would appear to have altered its position in its Observations, necessitating a discussion of
this issue in Chapter2.
1.14. Thailand appears, in its Observations, to take the view that subsequent ac tions by one
or other of the Parties serve to deprive Cambodia of its right to request that the Court issue a
binding interpretation of its Judgment.
1.15. That is evidently not the case. A decision by the Court — a legal act — is taken and
incorporated in the Judgment solemnly rendered by the Court. Neither its meaning nor its scope
can be altered by anybody’s subsequent conduct. As was pointed out by Cambodia in its
10
Application for interpretation , the objective of interpretation proceedings is to preserve the legal
situation resulting from the judgment itself. This stems both from the wording of Article 60 and
from its position in the Statute. As S. Rosenne underscores perfectly, “a judgment in interpretation
cannot consider new facts arising or becoming known after the principal judgment” . As Thailand1
asserted during the oral proceedings, that was established by the Permanent Court, which held that
“the Court, when giving an interpretation, refrains from any examination of the facts other than
8 those which it has considered in the judgment under interpretation, and consequently all facts
12
subsequent to that judgment” .
1.17. It follows — and this is regarded as a fundamental principle — that no act undertaken
individually by one party, or jointly by both parties, is able, in law, to alter in any way the
“meaning or scope of a judgment” issued in contentious proceedings between those parties, and
that constitutes the basis of Article 60 of the Statute, from which this Cambodian Request stems.
There is no scope in the Statute of the Court for an interpretation of a judgment to be in any way
affected, or even conditioned, by the subsequent conduct of the parties, on a basis analogous to that
under Article 31 (3) (b) of the Vienna Convention on the La w of Treaties. That is in no way
surprising, given that the Vienna Convention concerns instruments established by parties for their
own ends, the legal force of which stems from agreements between the parties, while a judgment of
the Court is a fundamenta lly different legal instrument. Once a judgment has been issued by the
Court, the rights of the parties to which the judgment relates are unalterable. There is no appeal,
and there is no procedure for requesting that the judgment be re-examined, except in the limited list
8
CR 2011/15, p. 25, para. 15 (Berman). See also the Application, para. 28. For the Thai position, see
CR 2011/14, p. 39, paras.16-17 (Crawford).
See Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections(Nigeria v. Cameroon),
Judgment, I.C.J. Reports 1999 (I), p. 31.
1Application, para.28.
11
S. Rosenne, The Law and Practice of the International Court, Vol. I, “The Court and the United Nations”,
1920-2005, Chap. 28, p. 1613. Previous decisions by the Court and the Permanent Court of International Justice on this
subject are addressed in Chap.4, infra.
12
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A,
No. 13, p. 21, cited by Thailand in CR2011/14, p. 39, para. 16 (Crawford). - 6 -
of cases set out in Article 61 of the Statute of the Court. The judgment may be correctly
implemented, or it may not, but this will have no impact whatsoever on the rights and obligations
resulting from the judgment itself. Thus, even a formal agreement between the parties for the
purpose of governing their future relations as regards matters covered by the Court’s judgment is
unable retroactively to alter the legal effects of the judgment itself — notwithstanding that the
agreement maycreate a new régime of rights and obligations for the parties in question.
4. Recognition of a pre-existing frontier is not delimitation or demarcation
1.18. On a number of occasions, the Observations state, in accusatory tones, that Cambodia’s
arguments are based on the (erroneous) premise that the Court, in its 1962 Judgment, neither
“established” nor “delimited” a shared frontier between the two States on the basis of the Annex I
map for the area at issue in this dispute. Such an argument clearly does not feature in Cambodia’s
13
submissions in these proceedings . Cambodia prefers to refer to the contents of paragraph 39 of
the Application, in which it lists, verbatim, the various passages leading to the conclusions of the
9 1962 Judgment. These are the essential elements of the reasoning that led to the recognition of
Cambodia’s sovereignty over the Temple, showing that the Annex I map 14 had acquired binding
force between Thailand and Cambodia. In other words, the Court recognized (with binding force)
a frontier which did not acquire legal status as a result of the Judgment, but instead already existed
in law. Given the significance of that recognition in terms of the Court’s reasoning, Cambodia
considers that the relevant grounds employed by the Court constitute res judicata.
[1.18.] Cambodia has never taken the view (a position that would be illogical and
impracticable) that the prior existence of a legally established frontier renders pointless the
appropriate demarcation of that frontier. In that ca se, there would be no point in engaging in the
bilateral process established by the Joint Communiqué of 1997 and the MoU described in
paragraphs 18 to 20 of the Application. However, demarcation presupposes prior identification of
the frontier line, and i n the region in question there is a logical need to use as a basis the legal
situation set out in the Judgment of the Court. There is no evidence to the contrary in the
instruments on which the demarcation process is based, and Thailand’s argument seeking to
insinuate that Cambodia sacrificed the legal benefits derived from the Judgment of the Court when
15
it concluded the MoU is devoid of any credibility .
5. The missing argument
1.19. Thailand devotes a large part of its Observations to establishing that the dispositif of
the Judgment did not contain explicit grounds relating to the binding force of the frontier line on
the Annex I map. Cambodia can only concur, since that exposition is entirely superfluous.
However, as the Court has already ruled in thi s case, at the provisional measures stage, following
13
Thailand has been misled by the Registry’s English translations of paras. 4 and 10 of the Application. In fact,
the phrase which is used in para. 4 of the Application is “à la recherche de la ligne qui devait constituer la frontière” (“to
the search for the line that was to constitute the frontier”), and that same phrase is used in para.10 of the Application.
1Thailand’s argument that the Ann.I map used in the proceedings is not the same as that received by Thailand in
1908 is of no importance.
1See paras. 2.70-2.81, infra. See also paras. 4.78-4.83. - 7 -
the Court’s earlier decisions in Cameroon v. Nigeria and Avena, a request for interpretation
“cannot concern the reasons for the judgment except in so far as these are inseparable from the
16
operative part” .
10 1.21. However, Thailand does not respond to that argument in any way. It provides no basis
for its simplistic argument that the map has no status in these proceedings, a position that is
particularly awkward for Thailand in light of its statemen ts in the original case, where it said that
17
“[t]he issue in this case is a map, AnnexI” and “[t]he central issue in this case has become a map,
Annex I” . 18
1.22. Nor, contrary to the Court’s explicit assertion (as highlighted by Cambodia in its
Application), does Thailand attempt to explain why the Annex I map is not an essential issue or
why it is separate from the dispositif . It is unable to produce any arguments in support of that
position . Instead, Thailand prefers to have recourse to the simplisti c argument that Cambodia
20
“misconstrues21he reasons” and that there are “other reasons” which “equally supported the
Judgment” , without managing to identify them.
1.23. In this case, the Court was explicit in its conclusions and as regards the essential
reasoning that led to those conclusions. It expressly states that “the Court can only give a decision
22
as to the sovereignty over the Temple area after having examined what the boundary line is” . It
expressly states that the “essential” question in this case is “whether the Parties did adopt the
Annex I map, and the line indicated on it, as representing the outcome of the work of delimitation 23
of the frontier in the region of Preah Vihear, thereby conferring on it a binding character” . It
expressly states that “[t]he Court considers that the acceptance of the Annex I map by the Parties
24
caused the map to enter the treaty settlement and to become an integral part of it” . Nevertheless,
Thailand continues to assert that the Court did not “grant any status t o the Annex I line” 25 in 1962.
That position — which has conditioned both Thailand’s diplomatic position and its actions on the
ground — is the reason why there is now a dispute before the Court regarding the interpretation of
its Judgment.
16
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), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011, p. 2,
para. 1. Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon),
Judgment, I.C.J. Reports 1999 (I), p. 35, para. 10.
17CR 1962, p. 272 (Hyde).
18
CR 1962, p. 273 (Hyde).
19
Remarkably, Thailand simply indicates, in para. 4.92 of its Observations, that “the reasons in themselves cannot
be the object of an interpretation under Article 60”. This argument is follow ed by a footnote directing the reader to
para. 4.82. Para. 4.82 then simply cites Cameroon v. Nigeria, indicating that a request for interpretation “cannot concern
the reasons for the judgment except in so far as these are inseparable from the operative p art” (I.C.J. Reports 1999 (I),
p. 35).
20Thai Observations, para.5.26.
21
Ibid., para. 5.40.
22
Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962 , pp. 16-17. See also
the Thai Observations, p.46, para. 2.47.
23Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 22.
24Ibid., p. 33.
25Thai Observations, p.16, para. 1.34. - 8 -
11 6. Summary
1.24. The Thai Observations contain a large number of misunderstandings and omissions:
interpretation is confused with execution ; recognition of an existing frontier is confused with its
demarcation and delimitation; and interpretation proceedings are con fused with appeals and
revision. And as regards omissions, they fail to explain why — despite the Court’s explicit
reference to the Annex I map as a basis for its Judgment — the positioning of the line in the
relevant area is not an “essential” issue. What is more serious, however, is the fact that Thailand,
in its Observations, also seeks to suggest that, sei sed of a request for interpretation, the Court’s
opinion on its own judgment should be conditioned by what the Parties thought or did, both before
and after the judgment was issued. This is a genuine attempt to interfere with the integrity and
independence of the Court’s judicial function for the benefit of States appearing before it. This is
unacceptable. And yet, this has been the primary Thai position in this case since the Judgment was
renderedin 1962.
C. Scheme of the Response
1.25. The arguments on the merits will be presented in the following manner.
1.26. Chapter 2 will be devoted to the facts of the case and will show, largely using
documents produced by Thailand itself, that the Thai Observations offer a particularly truncated
view of the events that followed the Judgment of the Court, disregarding Cambodia’s repeated
protests regarding Thailand’s claims.
1.27. Chapter 3 will show that, on the basis of the criterion established in the judgments of
the Court and of its predecessor, all the conditions are fulfilled for the Court to exercise its power
to interpret a judgment. It will show, following detailed analysis of Thailand’s legal position as
revealed for the first time in its Observations, that the dispute between the twoStates regarding the
interpretation of the 1962 Judgment is far more significant than was envisaged when Cambodia
requested provisional measures.
1.28. Chapter 4 contains the main arguments concerning the necessary interpretation of the
1962 Judgment. This will analyse the link between the dispositif of a judgment and the underlying
reasoning, taking account of the case law of the Court and the practices of inter national tribunals,
and then showing that the essential element— indeed the sole element — of the reasoning serving
12
as the basis for the grounds set out by the Court in the dispositifof the 1962 Judgment cannot be
ignored. It will conclude by indicating the correct interpretation to be given to the meaning and
scope of the first and second paragraphs of the dispositif. Finally, it will deal with the erroneous
interpretations which Thailand is seeking to give to the Judgment.
1.29. Chapter 5 contains Cambodia’s final submissions and will show, on the basis of the
Thai Observations taken as a whole (particularly as regards Thailand’s deliberate attempt to contest
the Annex I map retrospectively), that Thailand’s principal objective is to lodge a kind of a ppeal
against the Court’s 1962 Judgment in a manner which is incompatible with the Statute of the Court. C HAPTER 2
13
F ACTS SHOWING THAT C AMBODIA HAS NEVER ACCEPTED
T HAILAND S UNILATERAL INTERPRETATION
A. Introduction
2.1. In this chapter, Cambodia will lo ok at various facts demonstrating the behaviour of the
Parties as regards the area around the Temple of Preah Vihear following the 1962Judgment. There
are two reasons why it is of fundamental importance to go back to this period. Firstly, Thailand has
provided a largely truncated and prejudicial presentation of the facts of the case, seeking to show
that there is no dispute between the Parties as regards the interpretation of the Court’s Judgment.
Consequently, Cambodia is obliged, first of all, to re-establish the truth of the matter. Secondly, an
accurate presentation of the facts of the case after 1962 clearly shows the manner in which each
Party believes the Judgment should be interpreted.
2.2. The reality of the situation is that Cambodia and Thai land are currently in dispute as to
the meaning and scope of the 1962 Judgment 26. However, a very large part of the Thai
Observations and the annexes thereto seeks to show that, in the years that followed the
1962 Judgment, there was no real dispute between the Parties, which would render inadmissible
this Application for an interpretation by the Court.
2.3. The legal scope of this argument will be examined in Chapters 3 and 4. The aim of this
chapter is to show that, in the absence of any legal basis, th e argument is contradicted by the very
facts presented by Thailand. The analysis that follows will, to a very large extent, be based on the
documents provided by Thailand (supplemented by Cambodia where this is necessary in the
interests of precision and concision). It will show that the events that followed the Judgment
clearly establish that the Parties are in dispute as tothe meaning and scope of the Judgment.
2.4. Ignoring what the Court27aid in its Order indicating provisional measures, Thailand
maintains that there is no dispute and that it is Cambodia which “is now calling into question a
status quo which endured for a very long time and which rests on a common understanding of
14 28
Thailand and Cambodia of the obligations arising from the 1962 Judgment” .
2.5. Following a scarcely veiled amendment of its legal arguments, Thailand fails to ask the
relevant question— namely whether the Parties are in dispute as to the meaning and scope of the
Court’s decision — and instead endeavours to show that Thailand “complied” with that Judgment
and “implemented it”, and that Cambodia has recognized that compliance by Thailand . Thus, as
far as Thailand is concerned, “there is no present day dispute between Cambodia and Thailand over
30
compliance with the 1962 Judgment” .
2As the Court shows, prima facie, in its Order of 18 July 2011: Request for Interpretation of the Judgment of
15 June 1962 in the Case concerning the Temple of PrVihear (Cambodia v. Thailand) (Cambodia v. Thailand),
Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011, p. 8, para. 31.
27
Thai Observations, p.123, Sec. A, and p. 283, para. 7.5.
2Ibid., p. 135, para. 4.31.
2Ibid., para. 4.32.
30
Ibid., p. 9, para. 1.18. - 10 -
2.6. Cambodia does not believe that Thailand has acted in conformity with the Judgment of
the Court or correctly implemented it. However, these proceedings do not concern the
implementation or enforcement of the Judgment. They concern its interpretation. In that respect,
the central questions also concern the meaning and geographical scope of what the Court decided
in the first two paragraphs of the dispositif , in the light of what the Court decided regarding the
scope of the Annex I map, as well as the fact that the obligation on Thailand to withdraw its troops
is a permanent one. The question of the implementation of the Judgment is different, since it
consists of determining where such an obligation should apply. That is not a question that
Cambodia is asking the Court to rule on in this case.
2.7. The Thai Observations indicate that approximately one month after the Court rendered
its Judgment, Thailand’s Council of Ministers took a decision regarding the area covered by the
obligation to withdraw its troops under the second paragraph of the dispositif of the Judgment.
Cambodia drew the Court’s attention, in Chapter 1 of its Response, to the surprising and revealing
way in which Thailand has refrained from divulging the contents of the Resolution of the Council
of Ministers or (despite the importance that Thailand has attributed to it in these proceedings)
including it in the 758 pages of documents submitted to the Court as annexes to its Observations.
Thailand now claims that the b arbed wire placed all along a very narrow perimeter around the
Temple was put there in order to implement the Resolution of the Council of Ministers — in other
words, that this was a physical manifestation of Thailand’s unilateral interpretation of the meaning
and scope of the Judgment of the Court. Cambodia has never accepted Thailand’s unilateral
actions. On the contrary, Cambodia, on a large number of occasions, protested vigorously against
this state of affairs, which did not reflect the Court’s decision. This situation lasted until the
15
beginning of the 1970s, when an internal armed conflict broke out in Cambodia.
2.8. Following the resumption of normal political life in Cambodia at the beginning of the
1990s, this ceased to be an issue. Cambodia exercised sovereignty over the Temple and the areas
close to the Cambodian side of the line indicated on the Annex I map, including Phnom Trap hill.
Cambodian citizens residing in this area established markets and constructed a pagoda in 1998. It
was not until a number of years later that Thailand voiced concerns regarding the environmental
impact of these activities, and it never indicated that these were incompatible with its unilateral
delimitation of the “vicinity” of the Temple as defined since the 1962 Judgment.
2.9. It was only in 2007-2008, when Thailand objected to Cambodia’s request to have the
Temple placed on UNESCO’s World Heritage List, that the dispute resurfaced and Thailand began
to protest against Cambodia’s presence on what it considered to be Thai territory around the
Temple. In support of its claims, Thailand unilaterally produced a new map which purported to
show a frontier around the Temple, thereby demonstrating Thailand’s interpretation of the
Judgment. Cambodia protested, asserti ng that the map in question had no legal value and had not
been approved by the bilateral working group under the framework of the Memorandum of
Understanding of 14 June 2000. However, Thai troops occupied areas close to the Temple where
Cambodians were engaged in peaceful activities, and armed incidents took place. As the Court is
aware, further incidents took place in 2011, leading Cambodia to submit its Request for
interpretation and its Request for the indication of provisional measures in order to resolve the
dispute.
2.10. These various events are described in the paragraphs below. - 11 -
B. Legal importance of the facts subsequent to the Judgment
2.11. Before proceeding with the examination of the relevant facts subsequent to the
Judgment in the context of Cambodia’s Re quest for interpretation, it is important to describe the
legal context in which these events should be analysed. As pointed out in Chapter 1, any
16 interpretation of the Court’s 1962 Judgment must necessarily be based on the factual elements that
the Court had at its disposal when it deliveredits Judgment.
2.12. However, Thailand has included new elements and expert reports in its Written
Observations with the aim of revisiting issues relating to the Annex I map, which constitutes an
essential aspect of the Judgment of the Court. Thailand maintains that the Annex I map contained
defects such as recording and positional errors, as well as topographical errors and scaling
31
problems . Thailand has also included what it describes as a revised version of the map, whi32 it
claims to have discovered recently, 50years after the Courtrenderedits Judgment .
2.13. None of these new elements, or the arguments raised by Thailand with a view to calling
the Annex I map into question, is relevant in this case. Thailand had a great many opportunities to
raise the issue of the Annex I map during the main case, and it did so, to the point where this
became the central issue, as Thailand’s counsel acknowledged during the oral proceedings. The
33
Court noted that Thailand had accepted the map as it was at the time, not another version .
2.14. In its Judgment on the Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów) ,
the Permanent Court made its position on this point very clear. It observed, in particular:
“Moreover, the Court, when giving an interpretation, refrains from any
examination of facts other than those which it has considered in the judgment under
interpretation, and consequently all facts subsequent to that judgment. Similarly, the
Court abstains fr om any consideration of the effect which the judgment to be
construed might exercise upon submissions made by the Parties in another case or
otherwise brought to its knowledge. It confines itself to explaining, b34an
interpretation, that upon which it has already passed judgment.”
2.15. Moreover, during the hearings on provisional measures, Thailand did not hesitate to
35
cite that paragraph in order to exclude all facts subsequent to the Judgment . And yet, Thailand is
now openly contradicting itself by r eferring to a “version” of the Annex I map that it has just
discovered.
31
See, in general, Chap. VI of the Thai Observations.
32
Ibid., paras. 6.18 et seq.
33Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962 , p. 32. As Cambodia
will explain, the grounds set forth by the Court in its Judgment in respect of the status of theI map cannot be
separated from the operative partof the Judgment in question (see Chap.4, infra).
34Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A,
No. 13, p. 21.
35
CR 2011/14, p. 39, para. 16 (Crawford). - 12 -
2.16. Thus, Thailand’s new line of defence clearly resembles an attempt to persuade the
17 36
Court to revise its Judgment, or, as it were, a form of appeal against it . This is clearly
inadmissible and manifestly runs counter to the purpose of these proceedings. Neither does this
case concern issues relating to the demarcation of the frontier nearthe Temple, or the issue of how
the Annex I map should best be transposed on the ground. None of these issues was examined by
the Court in 1962.
2.17. A distinction should be made, in this respect, between the facts that the Court had at its
disposal when it issued its Judgment in 1962 and the events that followed the Judgment. As
Cambodia explained in the hearings at the time of its Request for the indication of provisional
measures , the former may be relevant in order to determine the meaning and scope of the
Judgment of the Court. In contrast, the latter are relevant only in order to det ermine whether the
Parties are in dispute as to the meaning and scope of the Judgment of the Court and in order to
determine the nature of that dispute. It goes without saying that a dispute regarding the
interpretation of a judgment by the Court cannot a rise until after that judgment has been rendered.
As the Court made perfectly clear in its Order indicating provisional measures in this case:
“such a dispute can, in itself, certainly arise from facts subsequent to the delivery of
that judgment” . 38
2.18. It should also be pointed out, by way of comparison, that one of the reasons why
Colombia’s Request for interpretation was not accepted in the Asylum Case was the fact that
Colombia submitted its Request for interpretation on the very day that the Judgment was issued.
As the Court noted in its Judgment interpreting that case:
“the very date of the Colombian Government’s request for interpretation shows that
39
such a dispute could not possibly have arisen in any way whatever” .
2.19. It is true that, as regards the existence of a dispute regarding the interpretation of a
judgment within the meaning of Article 60 of the Statute, the Court said:
18 “Obviously, one cannot treat as a dispute, in the sense of that provision, the
mere fact that one Party finds the judgment obscure when the other considers it to be
perfectly clear. A dispute requires a divergence of views between the parties on
definite points; Article 79, paragraph 2 [now, Article 98, paragraph 2], of the Rules
confirms this condition by stating t hat the application for interpretation ‘shall specify
40
the precise point or points in dispute’.”
However, as Cambodia pointed out in its Application (paragraph 23), that is not the case here.
36
See paras. 5.1-5.6, infra.
37
CR 2011/15, pp. 24-25, para. 15 (Berman).
38Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 ,
p. 10, para. 37.
39Request for Interpretation of the Judgment of 2November 1950 in the Asylum Case (Colombia v. Peru),
Judgment, I.C.J. Reports 1950, p. 403.
40
Ibid. - 13 -
2.20. Documents submitted by Thailand itself in this case show that, one month after the
Judgment, Thailand’s Council of Ministers adopted a Resolution (dated 10 July 1962) in which it
drew a line around the Temple beyond which it considered that Thailand had an obligation to
withdraw its military forces. Prior to th e hearings on the Request for the indication of provisional
measures, Thailand submitted to the Court a map showing the line drawn in the Resolution of the
Council of Ministers. However, Thailand made no reference to that map either during those
hearings or in its Written Observations. Neither has Thailand produced the Resolution adopted by
the Council of Ministers, a document which, in Cambodia’s view, should have been produced by
Thailand in the interests of coherence. For ease of reference, a copy of the map in question appears
after page 23, where that map is examined in greater detail.
2.21. Thailand’s reluctance to refer to its own map is understandable and could explain why
the Resolution of the Council of Ministers has not been produced either. For what it shows is the
Thai Government’s unilateral interpretation of the geographical scope of the 1962 Judgment shortly
after that Judgment had been issued. Thailand then implemented its decision on the ground by
laying barbed wire all along the perim eter (marked in pink on the map) and threatening any
Cambodian who crossed that line with reprisals.
2.22. As we will see in the next section, Cambodia protested against that line, as well as the
barbed wire used to mark it, as soon as it became aware of it. In Cambodia’s view, by reducing the
“vicinity” of the Temple to such a small area, and one that bore no relation to the frontier line
indicated on the Annex I map, on which the Court’s decision was based, Thailand fundamentally
misinterpreted (and incorrectly implemented) the first and second paragraphs of the dispositif of the
Judgment of the Court.
19 2.23. The dispute continued throughout the 1960s. From 1970 to 1998, as Thailand
expressly acknowledges in its Observations, there are no relevant events to point to regarding the
issue of the Temple area, notably on account of the internal armed conflict in Cambodia. Between
the beginning of the 1990s and 2007, the dispute disappeared, because Thailand no longer relied on
the line indicated on the map used by the Council of Ministers, which had been marked with barbed
wire. Cambodia administered the vicinity of the Temple in a peaceful manner, including the Phnom
Trap area, constructing a pagoda and establishing markets. This did not elicit any reaction from
Thailand, other than criticism of the alleged environmental impact of the Cambodian activities.
However, the dispute resurfaced in 2007-2008, when Cambodia asked for the Temple to be placed
on UNESCO’s World Heritage List and Thailand pr oduced a new map (marked “ SECRET ”)
indicating a new line around the Temple that ran closer to it — and was completely different from
the “watershed line” submitted in the main case— and granted even more territory to Thailand.
2.24. Thus, as Cambodia sta ted in its Application, this case concerning the interpretation of
the 1962 Judgment is not, therefore, simply a case of one Party considering the Judgment to be
obscure, while the other regards it as clear. The dispute between the Parties is based on con crete
elements: it concerns a documented position adopted by Thailand in respect of the territorial scope
of the Judgment, both in maps and on the ground, and the fact that Cambodia has never accepted
that position, neither when it was first adopted nor following the recent resurgence of the dispute.
2.25. Under Article 60 of the Statute, it is not necessary for the dispute to have arisen in a
particular manner. It is simply a question of whether the Parties have shown themselves to hold
differing views regarding the meaning or scope of one or more points in the Judgment which were
decided with binding force. As the Permanent Court asserted: - 14 -
“In so far as concerns the word ‘dispute’, the Court observes that, according to
the tenor of Article 60 of the Statute, the manifestation of the existence of the dispute
in a specific manner, as for instance by diplomatic negotiations, is not required. It
would no doubt be desirable that a State should not proceed to take as serious a step as
summoning another State to appear before the Court without having previously, within
reasonable limits, endeavoured to make it quite clear that a difference of views is in
question which has not been capable of being otherwise overcome. But in view of the
wording of the article, the Court considers that it cannot require that the dispute should
have manifested itself in a formal way; according to the Court’s view, it should be
sufficient if the two Governments have in fact shown themselves as holding opposite
20 41
views in regard to the meaning or scope of a judgment of the Court.”
The Permanent Court goes on to explain:
“In order that a difference of opinion should become the subject of a request for
an interpretation under Article 60 of the Statute, there must therefore exist adifference
of opinion between the Parties as to those points in the judgment in question which
have been decided with binding force. That does not imply that it must be beyond
dispute that the point the meaning of which is questioned is related to a part of the
judgment having binding force. A difference of opinion as to whether a particular
point has or has not been decided with binding force also constitutes a case which
comes within the terms of the provision in question, and the Court cannot avoid the
duty incumbent upon it of interpreting the judgment42n so far as necessary, in order to
adjudicate upon such a difference of opinion.”
As we will see, the documentation clearly shows that such a dispute continues to exist.
C. Thailand’s unilateral interpretation of the Judgment
and Cambodia’s reaction
1. Events from 1962 to 1970
2.26. In its Written Observations, Thailand asserts that “in the aftermath of the
1962 Judgment, and clearly for a long period afterwards, Cambodia has made n43complaint as to
the way paragraph2 of the dispositif was implemented by Thailand” . According to Thailand:
“Successful implementation of the judgment speaks for the agreement of the
Parties on its meaning and scope, and therefore for the absence of any dispute that
44
may require interpretation.”
In the same vein, Thailand claims:
41
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No.11, 1927, P.C.I.J., Series A,
No. 13, pp. 10-11.
42Ibid., pp. 11-12.
43Thai Observations, p.132, para. 4.25.
44
Ibid., p. 125, para. 4.11. Thailand claims that “it is hard to conceive that a judgment that has been implemented,
especially if it has been implemented a very long time ago, should reveal all of a sudden uncertainties or contradictions”
(ibid., p. 133, para. 4.27). - 15 -
“The subsequent consolidation of the factual situation resulting from Thailand’s
implementation confirms that the Parties shared a common understanding of the
45
obligations resulting from the Judgment.”
2.27. Thailand’s claims that Cambodia did not complain about Thailand’s implementation of
21
the Judgment and that the Parties had the same understanding of the obligations that the Judgment
placed on Thailand are manifestly erroneous and are contr adicted by numerous documents
submitted by Thailand itself as annexes to its Written Observations, as well as documents
submitted by Cambodia as annexes to this Response.
2.28. The Judgment was delivered on 15 June 1962. Shortly afterwards, Thailand’s De puty
Prime Minister and Minister for Defence (General Kittikachorn) made an overtly bellicose
declaration, already raising serious questions as to Thailand’s willingness to respect the Judgment,
particularly as regards the withdrawal of its troops from the area around the Temple:
“The Government ordered border police units to immediately open fire on
anyone attempting to enter that area, which belongs to Thailand and has always
46
belonged to it.”
2.29. A similar declaration was made by Thailand’s Prime Minister, Marshal Sarit Thanarat,
on 18 June 1962. His speech was reported as follows:
“I had already ordered reinforcements for the police guarding Preah Vihear.
Thailand retains sovereignty over the Temple of Preah Vihear, the Prime Minister
confirmed. I had also ordered that a mil47ary company be ready to respond to any
violation of Thailand’s sovereignty.”
2.30. Cambodia reacted immediately. In a declaration made the following day, Cambodia
expressed its profound regret at Thailand’s refusal to respect its 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” in accordance with the Judgment of the Court . 48
2.31. Several days later, Thailand’s Prime Minister made a more conciliatory declaration,
asserting that Thailand was ready to respect the Judgment, but at the same time distorting the words
that the Court had actually used:
22 “If [there is a] dispute over judgment, only plaintiff has right [to] a sk World
Court ruling. Suppose we agree [to] give up Khao Phra Viharn Temple. What is
extent of Temple vicinity? Court calls only for turning over Temple.” 49
4Ibid., p. 134, para. 4.30.
46
Ibid., Ann. 9, p. 53.
4Press conference given by Thailand’s Prime Minister, AKP, 18June 1962, Ann. 1.
4Ann. 2. See also Ann. 3, the remarks made by Prince Sihanouk on 22 June 1962, in which he observed that
Cambodia had shown patience, as the Judgment could not be appealed, and that Thailand would eventually have to
respect its obligations.
49
Thai Observations, Ann.10, p. 58; emphasis added by Cambodia. - 16 -
This question, which has not been answered to this day, remains the essence of the dispute between
the Parties and the essential issue at the heart of the Request for interpretation in Cambodia’s
Application.
2.32. On 6 July 1962, Thailand sent a letter to the acting Secretary -General of the United
Nations in which it stated that, despite disagreein g with the Court’s decision, Thailand intended to
respect its obligations in accordance with Article 94 of the Charter of the United Nations.
However, at the same time, Thailand protested against the decision and reserved the right to
recover the Temple in the future by means of recourse to all existing legal processes and any others
that might be established subsequently 50. Thailand then continued to assert that it rejected the
Judgment of the Court and had handed over sovereignty over the Temple solely on account of its
obligation resulting from Article 94 of the Charter, and not on the basis of what the Court had
decided . However, that meant that there was still no answer to the question of the area in the
vicinity of the Temple in Cambodian territory from which Thailand was obliged to withdraw.
2.33. At this point, it is worth noting that the various documents produced by Thailand in
these proceedings show that it has sought from the outset to establish its own truth, both in its
relations with the re st of the world — including the Special Representative of the
Secretary-General of the United Nations — and by maintaining a distinction between respect for its
obligations resulting from Article 94 of the Charter of the United Nations (which it ultimately felt
compelled to abide by) and the implementation of the Judgment of the Court (which it refused to
do). This in itself casts doubt, at the very least, on Thailand’s central argument in this case —that
it complied with the Judgment. However, out of sheer sophism, Thailand should now explain why,
to this day, it regards the Judgment as a series of instructions, the interpretation of which should be
confined to a very limited sphere, rather than seeking, in good faith, to interpret that Judgment as it
stands, in order to arrive at an understanding of the scope and meaning of what the Court explicitly
and implicitly decided.
2.34. The fact that Thailand sought unilaterally to determine the “vicinity” of the Temple
23 which was to be handed over to Cambodia was confirmed by Thailand’s Deputy Prime Minister on
12 July 1962, when he indicated that “the marking of the vicinity of the Temple of Phra Viharn
would be done by the Royal Thai Government unilaterally”. The Deputy Prime Minister then
added that “the Government had already decided the limit, which was 20metres from the Temple’s
naga staircase towards the main road, tworoads paralleling the Temple’s stairs at 100metres [and]
52
at the back, 30 metres from the broken staircase at the steep cliff” . Accord ing to Thailand’s
Written Observations, these actions constituted “measures necessary to comply with the
Judgment” . It is clear that this unilateral delimitation cannot have been based on the Judgment of
the Court and was instead based on the decision ta ken by the Council of Ministers several days
later.
50Ibid., Ann. 14, p. 79:
“His Majesty’s Government desires to make an express re servation regarding whatever rights
Thailand has, or may have in future, to recover the Temple of Phra Viharby having recourse to any
existing or subsequently applicable legal process, and to register a protest against the decision of the
International Court of Justice awarding the Temple of Phra Viharn to Cambodia.”
51
Ibid., Ann. 71, p. 425.
52Ibid., Ann. 17, p. 91.
53
Ibid., p. 135, para. 4.31. - 17 -
2.35. Thailand’s interpretation of the meaning of the word “vicinity” is reflected in the map
that follows. The United States embassy in Bangkok reported the following in a telegram dated
16 July 1962:
“Thais reportedly used barbed wire [to] mark off approximately 166 rais
(one rai equals 1,600 square metres) land surrounding Cambodia in compliance with
ICJ decision.” 54
2.36. The line on the map resulting from the Resolution of the Council of Ministers of
10 July 1962 cannot be reconciled with the Judgment of the Court and hardly represents an
appropriate “legal process” for the recovery of areas situated in Cambodian territory according to
the Judgment of the Court. The second map which follows this pa ge is taken from Thailand’s
Counter-Memorial in the main case. This map was prepared by the Thai expert in order to show
the path of the line on the Annex I map in the Temple area at a scale of 1:50,000 . As we will see
when we compare this map with the map used by Thailand’s Council of Ministers, the line on the
Annex I map, which, according to the Court, was accepted by Thailand, forms a “U” shape to the
north, east and west of the Temple, leaving the areas to the south of that line in Cambodian
territory.
2.37. By contrast, the map used for the Resolution of the Council of Ministers does not show
the line on the Annex I map. The pink lines to the east and west of the Temple are firmly in
Cambodian territory when this is compared with the line on the Annex I map. In fact, the pink
24 lines drawn by Thailand end in the south and east at points which, according to Thailand’s
arguments in the main case, were situated on the watershed line. However, that supposed
watershed line was not judged to be relevanton account of Thailand’s acceptance of the line on the
Annex I map, as is clearly stated in the Judgment of the Court . 56
2.38. As Cambodia has indicated, the Thai police were authorized to respond immediately in
the event that anyone failed to observe the line that it had unilaterally defined. A telegram sent to
Washington by the United States embassy in Phnom Penh on 16 July 1962 summarized the
contents of an article that appeared in the Cambodian publication “Réalités”. It stated that Thailand
had “accepted” the Judgment reluctantly and that Thailand could be expected to respond to any
violation of the line that it had conceived . By contrast, it indicated that Cambodia had not
concentrated its troops in the vicinity of the Temple, instead sending only a few guards . 57
2.39. On 14 August 1962, Prince Norodom Sihanouk issued a press statement in which he
made reference to armed incidents provoked by Thailand close to the Temple and objected to
Thailand’s unilateral decision to construct a barbed wire fence in Cambodian territory:
“Having indicated those reasons, I will state once again that the Thai aggressors
currently remain on our land. And what is more, although the soldiers stationed at
Preah Vihear have been withdrawn, the foot of the hill is surrounded by barbed wire
5Ibid., Ann. 19, p. 99.
55
It should be noted that the Ann.I map had a scale of 1:200,000.
5Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 19, p. 33. In its
Observations (pp.200-201), Thailand has again produced, in this regard, a truncated quotation taken from the Judgment.
Cambodia highlighted that fact in its Application for interpretation, but Thailand has nevertheless repeated that omission.
57
Thai Observations, Ann.20, p. 103. - 20 -
and Thailand’s Minister for the Interior has ordered his police forces to fire on anyone
approaching that barbed wire. It is clear, therefore, that they have not given up on
their objectives as regards Preah Vihear.” 58
2.40. That was the first in a long series of Cambodian complaints concerning Thailand’s
unilateral interpretation of the scope of the Judgment. Contrary to Thailand’s assertions in its
Written Observations, that declaration cannot be rega rded as recognition by Cambodia of
Thailand’s implementation of the Judgment.
2.41. A significant illustration of the manner in which Thailand views the facts of the case
25 can be seen from its assertion that Cambodia’s Minister for Foreign Affairs accepted, in a speech to
the General Assembly of the United Nations on 27 September 1962, that Thailand had “complied
with the Court’s decision” . In fact, the meaning of that brief extract from the declaration by the
Minister for Foreign Affairs, which has been taken out of context, is somewhat different from the
way that Thailand would like it to be understood. This was a declaration made during a “general
debate” by the General Assembly, which, as any informed observer knows, takes the form of a
quick overview of world events. The text shows that the Minister for Foreign Affairs alluded
primarily to Thailand’s rejection of the Judgment of the Court, and then its reluctance and partial
acceptance, but not to the question of the implementation of the Judgment on the ground. At that
time, Thailand had indeed withdrawn from the Temple itself, thereby complying with some of its
obligations resulting from the Judgment. However, Thailand had not withdrawn from the
“vicinity” of the Temple as required under the seco nd paragraph of the dispositif, so Thailand did
not observe the line on the Annex I map in the Temple area. The paragraph following that cited by
Thailand shows that Prince Sihanouk still had no plans to visit the Temple and Cambodia was still
wondering whether Thailand would allow him to do so without interference.
2.42. These persisting uncertainties can be seen in the report by Mr. Nils Gussing, who had
been appointed the personal representative of the Secretary-General of the United Nations with a
view to gathering information on the problems between Cambodia and Thailand 60. Mr. Gussing
produced his first report on those issues on 25 November 1962 . Thailand maintains that
Mr. Gussing had observed that issues of delimitation and demarcation were bound62 to arise in the
Dangrek region, “since the Judgment had not provided for them” . However, Thailand’s
Observations do not mention the fact that Mr. Gussing also made reference to Cambodia’s
disagreement with Thailand’s unilateral interpretation of the Jud gment of the Court and the laying
of barbed wire on the ground:
“In Cambodia, the Preah Vihear Temple plays an extremely important role in
the attitude shown towards the other Government concerned: although the case has
been ‘won’, the Thais are criticized as being ‘bad losers’ and as not having accepted
their defeat graciously, and the allegation is made that a part of the territory which,
under the ruling of the International Court of Justice, should, in the Cambodian view,
5Ibid., Ann. 26, p. 130.
5Thai Observations, p.141, para. 4.37, and p.246, para. 5.67; see also Ann.28, p. 145.
60
Ibid., pp. 142-143, para. 4.39; see also Ann. 30.
6Ibid., Ann. 32, pp. 173-188.
62
Ibid., p. 144, para. 4.40. - 21 -
be under Cambodian soverei gnty, is now fenced off by barbed wire, with land mines
placed here and there, fears being expressed that a major incident may break out when
Prince Sihanouk undertakes a visit to the Temple towards mid- December of this
63
year.”
26 2.43. It is clear, therefore, that as of November 1962, the Member States of the United
Nations had been informed of Cambodia’s fundamental disagreement with the position adopted by
Thailand in the area in which the Judgment was to be implemented. Thailand’s Written
Observations do not explain how this can be reconciled with Thailand’s assertion that the Parties
are not in dispute regarding the meaning and scope of the Judgment.
2.44. The French Government, among others, was manifestly aware of Cambodia’s rejection
of the Thai pos ition. This can clearly be seen from a report by the French embassy in Bangkok
dated 26 November 1962:
“However, Mr. G
USSING is not without concern on this point, since
Prince S IHANOUK told him that, although the Thais had indeed evacuated the Temple,
they continued to occupy an area that, according to the map in Annex III (sic), was in
Cambodian territory. Consequently, he feared that this could result in a fresh dispute
between the two countries and that the Prince’s upcoming visit to the Temple could
trigger it. This apprehension seems, to me, to be justified, since, as I emphasized in
my analysis of the Judgment of the Court in The Hague in telegram no. 495/AS of
4 October 1962 to the Department, the ruling contains a number of imprecisions which
could cause the debate to start up again.” 64
2.45. Cambodia’s rejection of Thailand ’s unilateral action was also referred to in an
aide-memoire published in November 1962 by the Cambodian Ministry of Foreign Affairs on
relations between Cambodia and Thailand. The relevant passage reads as follows:
“On July 15, 1962, General [Praphat] Charusathien, Thai Interior Minister, went
in person to Preah Vihear to delimit the temple zone with a line of barbed wire. It
later appeared that this delimitation was in co mplete disagreement with the Court’s
decision, which confirmed the frontier as it appeared on the 1907 map.” 65
“The attitude of the Thai authorities and their activities since the Court’s
decision of June 15, 1962, such as the refusal to comply with the de cision of this high
legal authority, encroachments on Cambodian territory, the laying of barbed wire
along a line not in agreement with basic documents, the setting of grenade traps in
Cambodian territory near the Temple, and open threats, have only served to confirm
Thailand’s attitude towards Cambodia, which is ‘to consider that law must follow the
changing facts . . . facts dictated by force’.”6
27 2.46. One month later, Cambodia’s Ministry of Information indicated that Prince Sihanouk
was of the same opi nion, since he too had expressed Cambodia’s hope that the Parties would
finally begin the process of normalizing the relations that had been broken off in 1961:
63Ibid., Ann. 32, p. 180; emphasis added by Cambodia.
64
Ibid., Ann. 33, p. 193.
65Ibid., Ann. 34, p. 205 and p.214.
66
Ibid., p. 207 and p. 214; see also Ann.4 for the original French version. - 22 -
“After noting that the Thai authorities had not entirely complied with the
Judgment of the Int ernational Court of Justice, having erected barbed wire that
infringes Khmer territory, the Prince emphasized once again ‘ our ardent desire to
67
normalize relations with our neighbours’.”
2.47. It was in this context that Prince Sihanouk visited the Temple on 5 January 1963. Prior
to that visit, there were concerns in international circles that this would provoke an incident, given
that Thailand had threatened to respond to any violation of the unilateral frontier that it had
established around the Temple. The United Nations mission headed by Mr. Gussing called on the
Parties to show restraint during the visit by Prince Sihanouk. At the same time, Cambodia clearly
stated that this was not to be regarded as acceptance of the barbed wire fence:
“The Cambodian Government objects to ‘these threatening measures, which
prepare the justification for a violation deliberately provoked by the Thai authorities
themselves’, and calls, in particular, on the Secretary-General of the United Nations,
‘reaffirming that th e access route that will be used on 5 January is located entirely
within Khmer territory and that respect for the frontier will extend to the network of
barbed wire surrounding the Temple, which was placed there unilaterally by the Thai
police and army with no regard for the frontier line imposed by the International Court
of Justice’. This communiqué adds that Cambodia reserves the right to refer this i68ue
of the violation of the Court’s decision of 15 June 1962 to the United Nations.”
2.48. Thailand’s Written Observations attach importance to the fact that Prince Sihanouk did
not venture beyond the barbed wire in the course of his visit and the fact that he supposedly said,
on that occasion, that he would not make an issue of that matter, “as these fe w metres are
unimportant” . Thailand also asserts that, following that visit, Cambodia ceased protesting against
70
Thailand’s implementation of the Judgment on account of the barbed wire .
2.49. These claims do not stand up to close scrutiny of the facts. Logically enough, the
28 Prince did not venture beyond the barbed wire in order to avoid any kind of incident on the day of a
major celebration in Cambodia. Moreover, Cambodia was doing everything it could to allow the
United Nations mission headed by Mr. Gussing to operate as smoothly as possible, given that the
aim of the mission was to reduce tensions. The international community expressed relief, noting
that the visit had passed off without incident as regards the security issues in the region. Howeve r,
that can in no way be regarded as Cambodia relinquishing its firmly held position that the unilateral
frontier line established by Thailand in the immediate vicinity of the Temple was not in conformity
with the Judgment of the Court. That position is v ery clear if one looks at the words used by
Prince Sihanouk when he visited the Temple, a statement that Thailand chose not to include in its
Observations:
“The Thais have, after a great deal of prevarication and stalling tactics, finally
evacuated P REAH V IHEAR . Unfortunately, that has not prevented them from ‘making
up for that loss’ by means of other expansionist activities: they have, to our detriment,
established a new frontier line in the immediate vicinity of P REAH V IHEAR . They
67Thai Observations, Ann.38, p. 240.
68
Ibid., Ann. 41, p. 261. A copy of the declaration, as it appeared in an AKP despatch dated 2 January1963, is
reproduced in Ann.5. The United States embassy highlighted the fact that Cambodia also reserved its rights in respect of
Thailand’s “violation” of the Judgment by means of the laying of barbed wire “in defiance of the border line laid down
by ICJ”. Thai Observations, Ann.43, p. 269.
69Ibid., p. 148, para. 4.45, and Ann. 51, p. 315.
70
Ibid., p. 149, para. 4.47. - 23 -
have, in particular, erected barbed wire and set up military and police posts which, in
several places, encroach fairly significantly on our territory, thereby flouting the
Judgment of the ICJ.” 71
2.50. The documents produced by Thailand in relation to the period after the v isit show
beyond doubt that Cambodia continued to protest against Thailand’s actions and that the assertion
in the Thai Observations that Cambodia ceased to protest is entirely without foundation. Th72 also
attests to the fact that Cambodia considered the Judgment of the Court to be clear .
2.51. For example, on 5 January 1965 Cambodia’s Head of State, while expressing regret at
the fact that Mr. Gussing’s mission had come to an end, remarked that Thailand was again
persisting with its refusal to recogniz e the frontier that had existed since the Court issued its
73
Judgment .
2.52. Again as regards Cambodia’s repeated objections to Thailand’s unilateral interpretation
of the Judgment, the Cambodian Minister for Foreign Affairs sent a letter, on 23 April 1966, to the
President of the Security Council, in which he protested at both Thai aggression in Khmer territory
29 and the barbed wire. To stress that point, that letter repeated the assertions made by
74
Prince Sihanouk in January 1963 .
2.53. The Thai Observat ions claim that the explicit reference in 1966 to the declaration by
Prince Sihanouk in 1963 was “anachronistic” and that “no real concern existed with respect to the
implementation of the judgment” . However, Cambodia would not have recalled its objections to
the barbed wire if it thought that the issue was unimportant. On the contrary, it is clear that
Cambodia continued to take the view expressed by Prince Sihanouk in 1963. Moreover, the fact
that Cambodia was contemplating referring the issue to the Security Council under Article 94 of
the Charter shows that Thailand’s understanding of the Judgment resulted in real concern as
regards its scope and unilateral implementation.
2.54. On 27 May 1966, in a subsequent letter addressed to the Secretary- General of the
United Nations, Cambodia reiterated its opposition to the barbed wire laid around the Temple by
Thailand .76
7Main points of the speech by PrinceSihanouk at Choam Ksan, AKP, 6January1963, Ann. 6; underlined as per
the original. See also the AKP report of 7January1963, Ann. 7.
7Speech by the Khmer delegation to the Sixth Committee of the United Nations, AKP, 6 January1964, Ann. 8.
See also Ann. 9, an aerogramme from the American embassy in Phnom Penh indicating that Cambodia was continuing to
rely on that same Ann.I map.
7PrinceSihanouk on “Cambodia’s relationship with Thailand”, 5January1965, Ann. 10.
74
Ann. 11; see also the Thai Observations, Ann. 65, p. 399. An identical letter, dated 23 April 1966, had been
sent to the Secretary -General of the United Nations, Ann12. See also Ann. 13, the French version of Thailand’s
Ann. 62.
75
Thai Observations, p.153, para. 4.54, and p.155, para. 4.55.
7See Ann. 14: Letter no. 2345 from Cambodia’s Permanent Representative to the Secretary -General of the
United Nations, dated 27May 1966. - 24 -
2.55. In August 1966, the Secretary -General of the United Nations appointed another
77
personal representative (Mr. Herbert de Ribbing) as m ediator between the two States . In the
course of that mediation, Thailand’s high representative refused, on various occasions, to
reconsider Thailand’s objections to the Judgment of the Court, insisted that the evacuation of the
Temple corresponded to compliance with Article 94 of the Charter (but not compliance with the
Judgment) and rejected Cambodia’s protests regarding the erection of barbed wire, regarding them
as Cambodia again laying claim to Thai territory. Thailand also raised the possibility of submitting
an application with a view to having the Judgment revised under Article 61 of the Statute . 78
2.56. In light of the Judgment of the Court, none of these propositions was acceptable to
Cambodia. There were no new facts justifying such a revision , and ultimately, after the
representative of the United Nations had expressed doubts regarding the value of such proceedings,
Thailand decided not to pursue this course of action.
2.57. On 26 October 1966, the Cambodian Minister for Foreign Affairs sent a letter to
30 Mr. de Ribbing insisting once again that: “ According to the Judgment of the International Court of
Justice of 15 June 1962, the Templ79of Preah Vihear and its vicinity are situated in territory under
the sovereignty of Cambodia.” This declaration was followed, on 9 November 1966, by another
unequivocal message from Prince Sihanouk, in which he complained that Thailand was still
refusing to abandon its claims to the Temple and the surrounding region:
“And Thailand, for its part, refuses to stop laying claim to our Temple of Preah
Vihear and the surroundingregion.” 80
2.58. The significance of this issue was such that Mr. de Ribbing made reference to it in a
note to the Secretary-General on 13 December 1966, in which he gave an account of his meeting
with the Cambodian Prime Minister on 30 August 1966, where the issue of the barbed wire was
again raised.
“The Prince mentioned in this connection that the barbed wire fence that the
Thais had put up on its side of the Temple was not even halfway between the Temple
and the border line fixed by the International Court of Justice in its decision regarding
Phra Viharn. Cambodia could, if it wanted, take this question to the Security Council
and request the Thais to withdraw to the borderline. The Ca mbodian Government had
preferred, however, to abide until further, in order not to have on hand still more
81
trouble with Thailand.”
2.59. By contrast, the Thai positions as communicated to Mr. de Ribbing consisted of
assertions that the Court had not rule d on the frontier in the vicinity of the Temple and that
Thailand had complied with the Judgment — a Judgment which Thailand, as represented by its
7Thai Observations, Ann.70.
78
Ann. 15: Pro memoria dated 10October 1966.
7Ann. 16.
8Ann. 17, p. 796; emphasis added by Cambodia. Message from PrinceSihanouk dated 9November 1966.
81
Thai Observations, Ann.72, p. 436. - 25 -
Minister for Foreign Affairs, was persistently refusing to accept. When he reported Cambodia’s
protests against the barbed wire, Mr. de Ribbing provoked the ire of Thailand’s Minister for
82
Foreign Affairs, who responded vigorously that Cambodia wanted “another piece of our land” .
At no point, however, did Thailand explain the basis on which it had unilatera lly decided to erect
that barbed wire or explain how that position could be reconciled with the dispositif of the
Judgment or the essential groundson which that dispositif was based.
31 2.60. Consequently, it is clear that, until 1966, Cambodia never stopped protesting against
Thailand’s interpretation of the meaning and scope of its obligations resulting from the Judgment
of the Court and that the Parties were in dispute on that matter.
2.61. The Thai Observations appear to take the view that the claims m ade by Cambodia in
1966 were isolated and of no real significance. According to Thailand, “Mr. de Ribbing’s reports
show that the barbed-wire fence was not a real issue in the relations between the Parties, and it was
never mentioned again” . 83
2.62. This allegation is false for two reasons. Firstly, as can clearly be seen from the
documents cited above, Cambodia attributed very considerable significance to Thailand’s unilateral
demarcation of the region around the Temple. And secondly, Cambodia continue d to protest
against the barbed wire fence, even after the end of Mr. de Ribbing’s mission, insisting on respect
for the frontier lines contained in the Franco -Thai agreements of 1904, 1907 and 1946, as well as
the Judgment of the Court . 84
2.63. On 22 October 1967, during a press conference, Cambodia’s Head of State explicitly
referred to the barbed wire, as well as Thailand’s inability to respect the Judgment of the Court as
regards the regionaround the Temple located in Cambodian territory:
“Aside from the fact that the International Court of Justice in The Hague has
already issued a ruling and there is no going back on decisions made with the force of
res judicata, the country’s territorial integrity should not be brought into question. All
around Preah Vihear, the Thais have, by laying barbed wire around it, kept the strip of
land that runs between the base of the Temple and the frontier, which lies a few metres
away as intended by the treaties reaffirmed by the decision of the International Court
of Justice. There is no question of their being accorded any further advantages in the
interests of being kind and facilitating the re-establishment of relations with them.
82
Ibid., p. 442.
83Thai Observations, p.156, para. 4.56.
84
Ann. 18: Memorandum on the actual situation with regard to the negotiations of the UN Mission to Cambodia
and Thailand, 2March 1967. - 26 -
On the contrary, the Thais must return to us the land situated between the ruins
of Preah Vihear and the frontier line.” 85
32 2.64. The documents just cited show clearly that Thailand’s argument that the Parties are not
in dispute as to the meaning and scope of the Judgment is not tenable. On numerous occasions,
Cambodia has clearly expres sed its disagreement not only with Thailand’s interpretation of the
meaning to be attributed to the Judgment, but also with the erection of the barbed wire, which takes
away a part of Cambodian territory, that area lying in the vicinity of the Temple as de fined by the
Annex I map.
2. Events between 1970 and 2007
2.65. The Thai Observations indicate that in 1970 “the situation in Cambodia had become
increasingly difficult because of fighting between internal factions and Viet Cong into Ca86odian
territory, in particular in the Dangrek Mountains and the Phra Viharn area” . The internal
situation in Cambodia, as well as the very significant tensions experienced in the region in general
on account of the cold war, meant that issues relating to the Temple were of only secondary
importance.
2.66. Following the signing of the Peace Agreements on 23 October 1991, the area in
question remained under the control of the Cambodian faction of the Khme87Rouge, which refused
to implement those agreements, until peace was restored in 1998 . There is no evidence — prior
to 2007, at least — that Thailand subsequently sought to impose its unilateral demarcation of the
vicinity of the Temple as provided for by the Resolution of the Council of Ministers of
10 July 1962.
2.67. In 1998, Cambodia constructed a market in front of the historic staircase and a pagoda
(the Keo Sikha Kiri Svara Pagoda) to the west of 88e vicinity of the Temple, while maintaining a
presence in the area around Phnom Trap hill . The position of the pagoda can be seen on the map
opposite. Despite the fact that this site is situated to the west of Thailand’s unilateral frontier line,
as decided by the Council of Ministers in July1962, Thailand did not protest. It should be pointed
out that the market, t he pagoda and Phnom Trap hill are all located firmly in Cambodian territory
according to the Annex I map.
33 2.68. Since Thailand was no longer asserting its claims to the frontier around the Temple that
it had unilaterally delimited in 1962, the Parties ag reed to establish a Joint Commission in order to
85Press conference of 22 October1967, “The words of Samdech Preah Norodom Sihanouk”, edited by the
Minister for Information, 1967, Ann. 19. See also Anns. 20, 21 and 22, in which Cambodia’s concerns are expressed
regarding Thailand’s attitude. See also the address given by PrinceSihanouk at Russey, near Preah Vihear, on
21 February1968, “The words of Samdech Preah Norodom Sihanouk”, edited by the Minister f or Information, 1968,
Ann. 23:
“Since then, the Thais have tried, by a whole range of means, to retake that sanctuary. They have,
since 1962, revealed their bad faith by failing fully to implement the decision of the International Court of
Justice. That decision ordered that the Temple and the strip of land around it be returned to Cambodia.
And yet, the Thais have refused to surrender that land, laying barbed wire around the edge of the
Temple.”
86Thai Observations, p.157, para. 4.58. See also Ann.82, p. 489, and Ann.84, p. 499.
87Ibid., Ann. 87, p. 511.
88
Ann. 24. - 27 -
demarcate their land frontiers. At the first meeting of the Joint Commission, which took place from
30 June to 2 July 1999, various recommendations were discussed, as well as a draft “Memorandum
of Understanding between the Government of the Kingdom of Thailand and the Government of the
Kingdom of Cambodia on the Survey and Demarcation of Land Boundary”.
2.69. The minutes of that meeting show that the Parties were in agreement on the fact that
the frontier had already been delimited. Thailand confirmed “that it had no intention whatsoever of
changing the existing boundary between Thailand and Cambodia” 89. For its part, Cambodia
declared that the frontier had been delimited by the Agreement between France an d Siam signed in
1904 and the Franco -Thai Treaty of 1907, which include maps to a scale of 1:200,000. The
two Parties also pledged not to violate the existing frontier in any way.
2.70. On 14 June 2000, the Parties concluded a “Memorandum of Understanding on the
90
Survey and Demarcation of Land Boundary” . As its title and contents clearly indicate, the MoU
was not concerned with questions of delimitation: it provided for the conduct of land surveys and
for the demarcation of the land frontier between the two States, with this technical exercise to be
carried out in a more in -depth manner by a Joint Technical Subcommission tasked, in particular,
with locating the 73 markers set out by the Franco -Siamese Joint Commission in 1908- 1909 and
1919-1920.
2.71. T he Thai Observations claim that the “talisman” of Cambodia’s Application for
interpretation is the fact that “a precise tracing of the boundary belongs to the res judicata of the
1962 Judgment” . It is also significant, according to Thailand, that the MoU makes no reference
to the 1962 Judgment, which, Thailand claims, it would have had to do if the frontier in the Temple
92
area had already been delimited . In the light of these claims, Thailand even goes so far as to
assert that Cambodia is, in reality, seeking an interpretation of the MoU, not an interpretation of the
1962 Judgment . 93
34 2.72. These claims are wide of the mark. The MoU concerns issues that were not intended to
be resolved by the Court when it rendered its Judgment, and the MoU is of no relevance as regards
Cambodia’s Request for interpretation. There was no question of the Court being responsible for
studying and demarcating the “precise path” of the frontier in the original case. There is no reason
why this should be any different in the present proceedings. The issue of the meaning and scope of
the reference, in the first paragraph of the dispositif , to the Temple being in Cambodian territory
and the obligation, under the second paragraph, for Thailand to withdraw from the vicinity of t he
Temple must be analysed in the light of what the Court said in its Judgment regarding the line on
the Annex I map, not in relation to any issues of demarcation.
2.73. Article I of the MoU provides that the demarcation of the land frontier will be
conducted jointly on the basis of certain instruments. These are the same instruments and maps
8Ann. 25: Agreed minutes of the “Thai -Cambodian Joint Commission on Demarcation for Land Boundary”,
Bangkok, 30June to 2 July 1999.
90
Thai Observations, Ann.91, p. 545.
9Ibid., p. 226, para. 5.41.
9Ibid., p. 228, paras.5.43 and 5.44.
93
Ibid., p. 229, para. 5.45. - 28 -
(including the Annex I map) that the Court had used in its 1962 Judgment. Those same instruments
were referred to once again in the Terms of Reference agreed by the Parties in 2003 in order to
94
implement the MoU . Consequently, it was pointless to refer to the Judgment of the Court in the
MoU.
2.74. Cambodia is in no way seeking any revision of the MoU. The reality of the situation is
that the MoU did not exist in 1962. It concerns an issue different from that decided by the Court in
1962 and is of no relevance as regards the questions of interpretation that the Court has now been
asked to rule on.
2.75. The most important thing to note as regards that period is the fact that not only did
Cambodia construct a market and a pagoda in the vicinity of the Temple without any protests by
Thailand in the ten years that followed their construction, but Cambodians were living in that area
and visiting the pagoda without Thailand complaining at all.
2.76. It was not until late 2004 that Thailand began to show some signs of concern regarding
these activities. On 25 November 2004, Thailand sent Cambodia a note stating that, following a
visit to the v95inity of the Temple , it had noted that the Cambodian community was growing at an
alarming rate . The note indicated that the Cambodian community had grown from approximately
90 families (365 inhabitants) in March 2004 to 165 families (733 inhabitants) in November, and
that numerous houses, huts, shelters and kiosks had been constructed “all over the area from the
35 96
footstep of the Temple to its top and in its vicinity ” . It should be emphasized that these activities
were fully in line with the Court’s 1962 Judgment, given tha t they took place in the Temple and in
its vicinity in Cambodia’s sovereign territory to the south of the line on the Annex I map.
2.77. The Thai note clearly shows not only that Thailand was aware of the existence of this
community as of the beginning of March 2004, but also that it failed to protest against any
encroachment on its territory. Likewise, the concerns expressed by Thailand in November related
to the pace of expansion and the environmental consequences that this new community could have,
and certainly not to the infringement of the unilateral boundary around the Temple that Thailand
had declared in 1962 — an issue that is not mentioned in the note. The note reads:
“Such expansion, with permanent structures, not only affects the natural
environment of the frontier zone but also creates plenty of problems ranging from
unpleasant landscapes and scenery to inappropriate management of waste disposal and
wastewater. Moreover, the Thai communities living on lower grounds are suffering
from polluted wastewater draining from the said area.” 97
9Ann. 26: Terms of Reference and Master Plan for Joint Survey and Demarcation of Land Boundary between
the Kingdom of Cambodia and the Kingdom of Thailand.
95
Thai Observations, Ann. 93, p. 579.
9Ibid.; emphasis added by Cambodia.
97
Ibid. - 29 -
2.78. The note also states that these activities were considered by Thailand to be contrary to
Article V of the MoU of 2004 (sic) — an Article providing that the Parties may not implement any
measures capable of giving rise to environmental changes in the frontier area. 98
2.79. It should be pointed out that Thailand regarded all of these activities as taking place in
the vicinity of the Temple. This was the same word that the Court had used in the
second paragraph of the dispositif of the 1962 Judgment. Whereas the Thai Observations seek to
reduce the geographical scope of the term “vicinity” by making reference to various definitions
99
found in dictionaries — to which Thailand adds its own gloss Thailand has in fact regarded the
vicinity of the Temple as encompassing the entire area around the Temple where Cambodians were
living and working. Cambodia’s Application for interpretation concerns that area.
100
36 2.80. Thailand sent Cambodia an identical letter on 8 March 2005 . Again, that letter
protested exclusively about the environmental impact on the area around the Temple of Preah
Vihear, not about any violation of the Thai Resolution of 1962.
2.81. So, up to 2006, Thailand no longer protested about violations of the area around the
Temple that it had delimited in 1962, while Cambodians had established themselves, without
incident, in the vicinity of the Temple on the Cambodian side of the line on the Annex I map.
While the Parties still had to work together to demarcate the land frontier, the vicinity of the
Temple was not the source of any serious incidents. Unfortunately, that situation did not last.
3. Resurgence of the dispute in 2007
2.82. The dispute resumed in 2007, when Thailand opposed Cambodia’s request, made on
the basis of a Cambodian royal decree dated 19 April 2006, that UNESCO’s World Heritage
Committee place the Temple of Preah Vihear on the World Heritage List.
2.83. Thailand’s attitude regarding Cambodia’s application to UNESCO should be seen in
the light of the internal political situation in Thailand at that time. Indeed, Thailand had initially
supported Cambodia’s application. Thaksin Shinawatra, Prime Minister of Thailand from 2001 to
2006, was in favour of a policy of détente towards Cambodia. Support for the Temple’s inclusion
on the World Heritage List was, therefore, in line with the foreign policy of the Thai Government.
2.84. However, on 19 September 2006, one month before a general election in Thailand, a
coup d’ état was stag ed against Thaksin Shinawatra. Following that coup d’état, the general
election was cancelled and the Thai army took control of the country. The military remained in
power until the end of 2007.
98
Thai Observations, Ann.93, p. 579.
9See, for example, the Thai Observations, pp.98-99, paras. 3.39-3.43, and Anns.103 and 104.
10Ibid., Ann. 94, p. 589. - 30 -
37 2.85. On 17 May 2007, during that period under military rule, Thailand sent Cambodia an
aide-memoire concerning its application to have UNESCO place the Temple of Preah Vihear on
101
the World Heritage List .
2.86. In its aide -memoire, Thailand challenged the map of the area that Cambodia had
prepared for its appl ication to the World Heritage Committee with a view to having the Temple
protected. Thailand also produced, for the first time, a new map (Series L7017) to a scale of
1:50,000 purporting to show a frontier line around the Temple and its vicinity. A copy of the map
in question can be found on the following page. As regards the frontier line appearing on the map,
Thailand declared:
“In this regard, the Royal Thai Government firmly states that the
above-mentioned Cambodian documents cannot in any way prejudice the existing
international boundary between Thailand and Cambodia as appeared in the map of
scale 1:50,000 series L7017.”
2.87. The new Thai map entirely contradicted the previous agreements concluded by
technical experts from Cambodia and Thailand, who had worked on issues of demarcation in
accordance with the MoU of 2000. On numerous occasions, representatives of the Parties had —
as evidenced by agreed minutes — agreed on the maps that were to be used for the purposes of
demarcation. Thus, the minutes of 29-30 September2003 specifically referred to maps prepared by
US agencies with series Nos. L708, L7011 and L7016 102. No mention was made of Series L7017,
on which the new Thai map was based. Identical agreements were concluded at the technical level
103 104
at meetings held in February 2004 and July 2004 , as well as in technical instructions for the
location of various markers on the frontier.
2.88. What is more, it transpires that not only did Thailand use a map (Series L7017) that
had not been agreed, it also unilaterally drew a frontier line around the Temple that did not appear
on the original American map. The frontier line on the map was not based on the Annex I map
described in the 1962 Judgment and in no way reflected the vicinity of the Templ e as it results
therefrom. It also showed a new and more extreme position as regards the watershed line
(demonstrating, moreover, the fluctuating nature of the Thai position), which the Court had not
38 considered relevant in its Judgment, and Thailand sought to link that new watershed line with the
line established in 1962 by the Resolution of the Council of Ministers. Once again, this shows
Thailand’s unilateral interpretation of the manner in which the Judgment of the Court should be
interpreted as regards the area around the Temple, and that despite the fact that Thailand had not
raised this issue for several decades.
10Thailand did not submit a copy of that aide -memoire with its Written Observations. However, a copy can be
found in Ann. 27 to this Response.
102
Ann. 28: Agreed minutes of the first discussion of Cambodian and Thai technical officers, Phnom Penh,
29-30 September 2003.
10Ann. 29.
104
Ann. 30. - 33 -
2.89. Despite this unfortunate development, Thailand’s position regarding Cambodia’s
application to UNESCO was to c hange again in 2008 following the election of
Prime MinisterSundaravej, who was a political ally of Thaksin Shinawatra and wanted to pursue
the same policy as his predecessor as regards Cambodia. Consequently, on 18 June 2008
Thailand’s Minister for Foreign Affairs signed a joint communiqué with Cambodia in Paris
expressing Thailand’s renewed support for Cambodia’s application to have the Temple placed on
UNESCO’s World Heritage List, while at the same time reserving the rights of the Parties as
regards the demarcation of the land frontier by the Joint Commission . 105
2.90. On 7 July 2008, the World Heritage Committee formally decided to place the Temple
of Preah Vihear on UNESCO’s World Heritage List . 106
2.91. The placing of the Temple on UNESCO’s World Heri tage List triggered a resurgence
in the nationalist movement in Thailand. Shortly before the World Heritage Committee made its
decision, an administrative court in Thailand issued an injunction suspending the effects of the
above-mentioned joint communiqué. This is referred to in paragraph 5 of the World Heritage
Committee’s decision.
2.92. On the day of the adoption of UNESCO’s decision, Thailand’s Constitutional Court
declared that the Minister for Foreign Affairs had violated the Constitution by signi ng the
communiqué supporting Cambodia’s application to UNESCO 107. It was clear, therefore, that
Thailand would adopt a firmer position on the issue of the Temple and its vicinity.
2.93. In these circumstances, Cambodia had no option but to show its firm opposition to the
39
new Thai map b108eans of a letter sent to the President of the General Assembly on
19 July 2008 . That letter criticized Thai soldiers’ incursion into Cambodian territory — notably
the site of the KeoSikha Kiri Svara Pagoda, which is situated some 300 metres from the Temple —
on 15 July 2008. Cambodia’s letter also criticized the new Thai map in that it was manifestly
incompatible with the Annex I map used by the Court in its 1962 Judgment and challenged
Thailand’s claim that the Cambodian pagoda had been constructed in Thai territory.
2.94. In its Observations, Thailand asserts that Cambodia pretended not to have been aware
of Thailand’s interpretation of the Judgment prior to the publication of the new Thai map in 2007.
Thailand states: “As far as the Temple is concerned, the map only illustrates the placement of the
1962 barbed-wire fence109rom the beginning, Cambodia knew precisely where the barbed- wire
fence was located.” Thailand also adds that “for more than forty years, Cambodia did not
dispute Thailand’s implementation of the 1962 Judgment” . 110
10Ann. 31: Joint communiqué of 18June 2008.
10Ann. 32.
107
Ann. 33. An English translation of the decision of Thailand’s Constitutional Court can be found here:
http://eajlg.org/sites/default/files/EAJLG%20Second%20Issue%20Constitut…
10Ann. 34. A letter using the same language had been sent to the President of the Security Council on
18 July 2008 (Ann. 35).
10Thai Observations, p. 162, para. 4.67.
110
Ibid., p. 163, para. 4.69. - 34 -
2.95. As explained earlier in the chapter, Cambodia was indeed aware of the existence of the
barbed wire during the 1960s. Contrary to the Thai claim, Cambodia protested on numerous
occasions against that barbed wire and against Thailand’s interpretation of the Judgment of the
Court. That is clear from the documentation submitted in this case. Thailand also glosses over the
fact that, for a number of years, it made no reference to th e barbed wire or the Resolution of the
Thai Council of Ministers of 10 July 1962. It was not until 2004 and 2005 that Thailand began to
complain about Cambodia’s increasing presence in the Temple area. However, Thai criticism at
that time related exclusively to the environmental consequences of such activities; Thailand did
not protest that such activities were inconsistent with the Resolution of the Council of Ministers or
the barbed wire.
2.96. By producing a new map in 2007 which shows a frontier a round the Temple based on
the line established by the Council of Ministers in 1962, and by repudiating the joint communiqué
signed on 28 June 2008, Thailand reawakened a dispute that had been forgotten for a number of
40 years. It is clear, however, that the re-emergence of this dispute is closely related to internal
political changes affecting Thailand.
2.97. The resurgence of the dispute between the Parties regarding the meaning and scope of
the 1962 Judgment became entirely evident when Thailand sent a letter to the President of the
Security Council on 21 July 2008 concerning “the area adjacent to the Temple of Preah Vihear” . 111
After maintaining that the pagoda in question is situated in Thai territory, the letter states:
“Cambodia’s territorial claim in this area is based on Cambodia’s unilateral
understanding of the said ICJ Judgment that a boundary line was determined by the
Court in this Judgment. Thailand contests this unilateral understanding since the ICJ
ruled in this case that it did not have jur isdiction over the question of the land
boundary and did not in any case determine the location of the boundary between
Thailand and Cambodia.”
2.98. As we can see, Thailand protested against what it considered to be Cambodia’s
“unilateral interpretation” of the Court’s 1962 Judgment. Cambodia, for its part, had already
protested in writing against Thailand’s unilateral interpretation as contained in the Resolution of
the Council of Ministers of 1962 and, more recently, the new Thai map produced in 2007. That
being the case, the Parties are clearly in dispute as tothe meaning and scope of the Judgment, under
the terms of Article 60 of the Statute.
2.99. During the oral arguments at the provisional measures stage, the Court took note of the
incidents that had occurred at the Temple and in its vicinity after 2008. Further incidents took
place at the beginning of 2011. Given the situation, and since it was clear that the Parties had
differing views as to the meaning and scope of the Judgment, Cambodia submitted a Request for
interpretation of the Judgment, as well as a Request for the indication of provisional measures.
11Ann. 36. - 35 -
D. Conclusions
2.100. The conclusions in Thailand’s Observations repeat the argument that Thailand has
complied with the 1962 Judgment a nd that the Parties are not in dispute regarding the
implementation of that Judgment 112. Thailand also maintains that it has, since 1962, withdrawn
from the vicinity of the Temple in acc113ance with the Judgment and that the Cambodian Request
contradicts its own previous position .
2.101. This chapter has shown that these claims are contradicted by the facts of the case.
41
2.102. In July 1962, Thailand unilaterally determined the area of the vicinity of the Temple
from which it was required to withdraw on t he basis of a Resolution of the Thai Council of
Ministers (which has not been produced, despite the fact that the map forms part of the
documentation in the present proceedings). Barbed wire was laid down in order to indicate
Thailand’s interpretation of the Judgment on the ground. Cambodia protested against these actions
on numerous occasions during the 1960s, considering that they ran counter to its interpretation of
the Judgment.
2.103. This then ceased to be an issue for a number of years, initially on account of the
internal problems in Cambodia, and then because Thailand stopped threatening to apply the
unilateral demarcation drawn up in 1962. The Cambodians who established themselves in the
vicinity of the Temple, on the Cambodian side of the line on the Annex I map, constructed a
pagoda, as well as markets. Thailand itself referred to these activities as taking place in the vicinity
of the Temple.
2.104. The dispute did not resurfaceuntil 2007-08, when, in reaction to Cambodia’s proposal
that the Temple be placed on UNESCO’s World Heritage List, Thailand produced a new map
which showed the area around the Temple according to its own interpretation of the
1962 Judgment. Moreover, the dispute has worsened as a result of political changes in Thail and.
Cambodia protested again in 2008, and Thailand recognized that the Parties differed in terms of
their understanding of what the Court had decided in 1962.
2.105. It follows that Thailand’s claims that (i) the Parties are not in dispute at all regarding
the interpretation of the Judgment and (ii) Cambodia has consistently accepted that Thailand
correctly implemented the Judgment are manifestly erroneous. The documentation compiled by
Cambodia in these proceedings leaves no room for doubt as regards t he fact that the Parties are
clearly in dispute in respect of the meaning and scope of the Judgment of the Court. It is that
dispute which Cambodia asks the Court to rule on in this case.
112
Thai Observations, p.281, para. 7.1.
11Ibid., p. 285, para. 7.8.42 CHAPTER 3
JURISDICTION AND ADMISSIBILITY : A LL OF THE CONDITIONS GOVERNING
THE C OURT ’S ABILITY TO INTERPRET A JUDGMENT ARE MET
3.1. It is necessary to determine whether Cambodia’s Request is admissible, so as to allow
the Court to interpret its Judgment, as well as to ascertain whether that Request falls within the
Court’s jurisdiction. It is also necessary to determine which interpretation of the 1962Judgment is
correct. The first point (jurisdiction and admissibility) will be addressed in this chapter, while the
second (the interpretation of the meaning and scope of the 1962 Judgment) will be addressed in
Chapter 4.
3.2. It is universally accepted that there are two fundamental conditions governing the
Court’s ability to interpret one of its judgments:
(i) there needs to be a disputeas to the meaning and scope of a judgment by the Court;
(ii) the objective of the request must be to obtain an interpretation of the judgment .
A. There is a dispute as to the meaning and scope
of a judgment by the Court
1. Existence of a dispute
3.3. Cambodia indicated, in paragraph 5 of the Application, three points where the two States
are in disagreement regarding the meaning and/or scope of the 1962 Judgment. The existence of
these disputes is then shown in paragraphs 12-17 and 24-25 of the Application. There is no doubt,
in the light of the Thai Observations, that Thailand is in dispute with Cambodia regarding the
three points detailed in paragraph5 of the Application.
3.4. In its Order indicating provisional measures, the Court stated, in the following terms, its
view as to the nature of the issues on which the Parties were in dispute as regards the interpretation
of the 1962 Judgment:
43 “Whereas, in the light of the positions adopted by the Parties, a difference of
opinion or views appears to exist between them as to the meaning or scope of the
1962 Judgment; whereas this difference appears to relate, in the first place, to the
meaning and scope of the phrase ‘vicinity on Cambodian territory’ used in the
second paragraph of the operative clause of the Judgment; whereas this difference of
opinion or views appears to relate, next, to the nature of the obligation imposed on
Thailand, in the second paragraph of the operative clause of the Judgment, to
‘withdraw any military or police forces, or other guards or keepers’, and, in particular,
11Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Jud11, 1927, P.C.I.J., Series A,
No. 13, p. 10; Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru),
Judgment, I.C.J. Reports 1950, p. 402; Application for Revision and Interpretation of the Judgment of 24 February 1982
in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya),
Judgment, I.C.J. Reports 1985, p. 217, para. 44. - 37 -
to the question of whether this obligation is of a continuing or an instantaneous
character; and whereas this difference of opinion or views appears to relate, finally, to
the question of whether the Judgment did or did not recognize wit h binding force the
line shown on the Annex I map as representing the frontier between the
two Parties.”115
3.5. Thailand now asserts that this assessment was merely provisional and valid solely in the
specific context of the Request for the indication of provisional measures. Cambodia does not
contest that fact. As the Court recognizes, that assessment stems from the positions developed by
the Parties before it. When it madeits Order indicating provisional measures, the Court had not yet
taken note of Thailand’s Written Observations, which set out in full Thailand’s position as regards
its interpretation of the meaning and scope of the Judgment. Moreover, Cambodia only learned of
that position at the same time. In a situation characterized, thus far, b y a Thai policy of faits
accomplis, rather than constructive diplomatic exchanges, it was only very recently that Cambodia
was presented with a full account of what Thailand claims the correct interpretation of the
Judgment should be and, in particular, the grounds on which that Thai position is based. Cambodia
now concludes, having studied the Thai Observations, that those Observations are evidence of a
dispute between the Parties that is even more fundamental than that described in Cambodia’s
Application. To be precise, they reveal, as shown in Chapter 2, that the Parties are clearly in
dispute as to the meaning of the terms of the first and second paragraphs of the dispositif ,
particularly in respect to the manner in which the terms chosen by the Court should be understood
in respect ofthe Annex I map in the vicinity of the Temple of Preah Vihear.
3.6. These issues will be addressed in greater detail, with reference to passages in the
Application and the Thai Observations, in Chapter 4, infra.
44 2. The dispute concerns the meaning and scope of the 1962 Judgment
3.7. Notwithstanding the arguments set out in the previous chapter, Thailand asserts that
either there is, in reality, no dispute, or the dispute does not concern the dispositif of the Judgment.
It advances threearguments in support of these assertions:
(i) Cambodia has accepted Thailand’s implementation of the Judgment, so that there is in
reality no difference of views between the twoStates regarding its interpretation;
(ii) there is, in any case, no dispute as to the meaning and scope of what was decided in the
Judgment;
(iii) it is not possible for there to be a dispute as to the meaning or scope of something that the
Court did not decide — namely the delimitation of the frontier between the two countries.
3.8. Each of these three arguments is erroneous both in fact and in law, as will be shown
below.
11Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011, p. 8,
para. 31. - 38 -
3.9. In its Observations, Thailand — while denying that the Court is competent to consider
the Application — asserts that the Parties ar e not in dispute as to the meaning and scope of the
1962 Judgment , given that the dispositif is “crystal-clear” . This manifestly does not mean that
Thailand accepts the interpretation of the Judgment set out by Cambodia in paragraphs 36-43 of the
Application. Given the very lengthy treatment of that issue in Chapter IV of the Observations, the
understanding must be that, if Thailand accepts that the two countries are in dispute, that dispute
does not relate to the meaning or scope of the first or second paragraphs of the dispositif of the
Judgment. The Court will note immediately the negative manner in which Thailand formulates that
assertion, in so far as it completely ignores Cambodia’sexposition, both in the Application itself 118
and in its oral argum ents at the time of the Request for the indication of provisional measures 11,
120
even though certain elements of the Court’s reasoning are in fact “inseparable from” the
45 dispositif of a judgment, such that they can themselves be the subject of a request for n iterpretation.
Thailand also ignores the Court’s consistent assertion that a dispute concerning the question of
whether a particular point has or has not been decided wit121inding force also constitutes a case
falling within the scope of Article 60 of the Statute .
3.10. Thailand ultimately focuses all of its efforts on seeking to defend the position that the
purpose of the 1962 Judgment was merely to grant Cambodia sovereignty — defined in the
narrowest sense — over the Temple of Preah Vihear, and the T emple alone. However, that
argument is not tenable in any way. It does not stand up to a literal reading of the first paragraph of
the dispositif, which unequivocally provides that the Temple “is situated in territory under the
sovereignty of Cambodia” ( emphasis added by Cambodia). That assertion cannot simply be
dismissed as if it were a momentary aberration on the part of the Court, a momentary laps122n
concentration, given that it stems from the overall scheme of the Judgment , as will be shown
below. Thailand’s obsessive attempt to transform this paragraph of the dispositif into an assertion
restricted to the physical outline of the Temple itself indicates, at the very least, that the Parties are
in direct dispute regarding this fundamental element of the dispositif of the Judgment, namely both
the meaning and the scope of the Court’s use of the phrase “in territory”.
3.11. Cambodia considers that, in terms of its general scheme, the logic of the Judgment
develops on the basis of the structure set out below, which contains references to specific parts of
the text of the Judgment:
11Thai Observations, p.283, para. 7.5.
117
Ibid., para. 4.75.
11Application, paras.39-41.
11CR 2011/15, pp. 20-23, para. 9 (Berman).
120
See also the reference to reasoning as an “essential step” leading to the conclusions in the operative clause.
See Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to Intervene,
Judgment, 4 May 2011, p. 20, para. 54, and p. 24, para. 70.
121
See Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of
PreahVihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J.
Reports 2011, p. 8, para. 31, which rightly refers to the decision of the Permanent Court of International Justice in
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13,
pp. 11-12.
122
See also the joint dissenting opinion of JudgesTanaka and Morelli:
“The claim as it is formulated in Cambodia’s Application is directed not to the return of the
Temple as such, but rather to sovereignty over the portion of territory in which the Temple is situated. It
is directed, further, to one of the consequences flowing from Cambodian sovereignty over the said portion
of territory . . .” (I.C.J. Reports 1962, p. 38.) - 39 -
(i) the dispute referred to the Court is a dispute concerning sovereignty (Judgment; p. 12);
(ii) in order to resolve that dispute over sovereignty, the Court is require d to take account of
the frontier between the twoParties in the sector in question (Judgment; pp. 14-15);
46 (iii) following an exhaustive examination of the documentation and diplomatic history relating
to that frontier issue, the Court concludes that the two Parties have accepted the line on the
Annex I map as the frontier line, with the result that the Parties are required to use that
line in the context of their treaty settlement (Judgment; pp. 30-31);
(iv) given that the Temple is situated on the Cambodian side of that frontier line, it is therefore
situated in territory under the sovereignty of Cambodia (Judgment; p. 17 and p. 34);
(v) this has a number of specific consequences— firstly, the withdrawal of troops and foreign
officials from the vic inity of the Temple, and secondly, the return of objects that have
been removed (Judgment; p. 35).
3.12. Thailand clearly cannot bring itself to recognize — let alone accept — this irresistible
logic. There is a very simple reason for that. Firstly, i t would, at a stroke, destroy the argument
that the Court confined itself to attributing sovereignty over the Temple, or (at the very most) a
narrow strip of territory on which it stands: “Accordingly, the subject of the dispute submitted to
the Court is confined to a difference of view about sovereignty over the region of the Temple of
Preah Vihear. To decide this question of territorial sovereignty , the Court must have regard to the
frontier line between the two States in this sector.” 123 Secondly, because the Court asserts, in
wholly unambiguous terms, that the conclusion it reached as regards the status of the Temple (and
the consequences of that conclusion) stem from the fact of having established, in law, the course of 124
that frontier, which is accepted by the two States and binding upon them: “It is for this reason
that the Court can only give a decision as to the sovereignty over the Temple area after having
examined what the frontier line is.” 125 Finally (and above all), given the position adopted by
Thailand before the Court, the Court has explicitly, and in very clear terms, ruled on the Annex I
map: “The Court however considers that Thailand in 1908- 1909 did accept the Annex I map as
representing the outcome of the work of delimitation, and hence recognized the line on that map as
being the frontier line , the effect of which is to situate Preah Vihear in Cambodian territory . . .
Both Parties, by their conduct, recognized the line and thereby in effect agreed to regard it as being
47 the frontier lin e . . . The Court considers that the acceptance of the Annex I ma126y the Parties
caused the map to enter the treaty settlement and to become an integral part of it.”
3.13. These conclusions by the Court cannot be placed to one side like an obiter dictum or
grounds that are purely accessory to the dispositif of the Judgment, since they play a full part in
what the Court decided in the first paragraph of the dispositif. It cannot be claimed that there was
no link whatsoever between the Court’s ruling on the status of the Temple and its explicit assertion
12I.C.J. Reports 1962, Judgment, p.14; emphasis added by Cambodia.
124
Namely, the fact that the Treaty does not mention the Temple of Preah Vihear as such.
12Ibid., pp. 16-17; emphasis added by Cambodia.
126
Ibid., pp. 32-33 (emphasis added by Cambodia). The Court based its earlier ruling on the acceptance of the
Ann. I map as an essential element of the case: “The real questi on, therefore, which is the essential one in this case, is
whether the Parties did adopt the Ann. I map, and the line indicated on it, as representing the outcome of the work of
delimitation of the frontier in the region of Preah Vihear, thereby conferringon it a binding character.” (Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 22.) - 40 -
regarding the positioning of the frontier line in the sector in which the Temple is situated. Thus,
this decision is, as Cambodia noted in its Application 12, a perfect example of reasons that are
128
“inseparable from the operative part”, as the Court held in Nigeria v. Cameroon . However, there
is not the slightest indication that this decision by the Court was limited to a tiny area of land solely
around the Temple. Any interpretation of the 1962 Judgment that sought to assert that the Court’s
conclusions regarding the status of the Annex I map — as reflected in the Court’s conclusions
regarding Cambodian territory in the first paragraph of the dispositif — had no effect other than as
regards the Temple itself, and consequently had no impact on the corresponding obligation to
withdraw troops as set out in the second paragraph of the dispositif , would be entirely at odds with
the Judgment’s coherent approach to the Annex I map.
3.14. As Cambodia indicated in its Application, the wording of the first paragraph of the
dispositif clearly shows that “the Court does not attribute sovereignty over the Temple to
Cambodia, but recognizes that sovereignty as an automatic consequence of the fact that the Temple
is situated in territory under the sovereignty of Cambodia, as determined in the reasoning of the
decision on the basis of the Annex I map. In other words, the Court recognizes that there is no
separate title to the Temple other than that which already exists to Cambodia’s sovereign
territory.”129
3.15. It is doubtless because of Thailand’s inability to escape the irresistible logic of the
foregoing that it has, improbably 130, relied on the technical defects in the Annex I map, while well
48 aware that almost all of those defects are located some distance from the Temple. This attempt to
induce the Court by subterfuge to revise the 1962 Judgment will be discussed below.
3.16. Cambodia thus maintains that the pleadings in this case show beyond any doubt:
(i) that Cambodia and Thailand are in dispute as to the meaning and scope of the manner in which
the Court used the phrases “ in territory under the sovereignty of Cambodia ” in the first paragraph
of the dispositif of the 1962 Judgment and “its vicinity on Cambodia n territory” in the
second paragraph; (ii) that they are also in dispute as tothe significance of that issue as regards the
meaning and scope of the corresponding obligation to withdraw troops as set out in the
second paragraph of the dispositif of the 1962 Judgment, particularly the issue of whether that
obligation is of a permanent or instantaneous character; (iii) that they are also in dispute as to the
question of whether the Judgment did or did not recognize with binding force the line on the
Annex I map as representing the frontier between the two Parties in the region of the Temple. All
of these disputes concern questions of interpretation, meaning that the Court is competent to
interpret the Judgment under Article 60 of the Statute as requested by Cambodia.
3.17. As regards the first dispute, over the meaning of the terms “territory” and “vicinity”, it
is undeniable that the Court, having chosen to use the wording “ in territory under the sovereignty
of Cambodia” in the first paragraph of the dispositif and the wording “at the Temple, or in its
vicinity on Cambodian territory” in the second paragraph of the dispositif, has not provided a
12Application, para.40.
128
Request for Interpretation of the Judgment of June 1998 in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections(Nigeria v. Cameroon),
Judgment, I.C.J. Reports 1999 (I), p. 35, para. 10.
12Application, para.38.
130
Thai Observations, Chap.VI. - 41 -
precise definition of that wording. Thailand claims to have corrected the Judgment by providing its
own very restrictive definitions, which it has developed on the basis of highly complex reasoning
131
that has never been communicated to Cambodia before . Cambodia (basing its position on the
wording of the Judgment) understands the two phrases in a broader sense. This, in itself, represents
a clear dispute between the two States regarding the first and second paragraphs of the dispositif.
Thailand is seeking, moreover, to explicate the meaning and scope of the first paragraph of the
dispositif by subjecting it to its own reading of the second paragraph of the dispositif, a reading that
is not only impossible given the wording of the Judgment, but also directly contradicted by the
Court’s explicit indication that the second paragraph stems from the first, and not vice versa. That
means that the two States are, clearly, also in dispute regarding the second paragraph of the
dispositif. It also follows that they are in dispute as to the correct interpretation of the link between
those two paragraphs. All of those dis putes — the existence of which has now been undeniably
established by the formal Observations submitted to the Court by the Parties in these
49 proceedings — concern the interpretation of what the Court actually decided with the force of
res judicata. Nor, finally, does Thailand contest the existence of a dispute between the Parties on
the question of whether 132 Judgment did or did not recognize with binding force the line indicated
on the Annex I map . In Cambodia’s view, this is also a dispute which, acco rding to the
decisions of the Court and the Permanent Court, falls within the scope of interpretation proceedings
under Article 60 of the Statute.
B. The Request is admissible
1. The Request is not time-barred, and Cambodia has never renounced its right to request an
interpretation
3.18. In the great majority of the cases that are brought before the Court, the request for
interpretation is submitted not long after the judgment itself. Where that does not happen, certain
practices may (as in this case) be established between the parties to the dispute in the interval
between the judgment and the request for interpretation. However, that in no way alters the
essential judicial nature of interpretation proceedings. For similar reasons, it is not possible, either
under the Statute or as a general principle, to construct on the basis of the actions —and, above all,
omissions — of the applicant a purported “renunciation” of the right to request an interpretation
guaranteed by Article 60 of the Statute. To de rive from the Statute of the Court a concept that
would make it possible for a State to renounce its rights would be to 133roduce a disguised
time-limit on Article 60, contrary to what the Court has decided .
3.19. Thailand has even gone so far as to asse rt that “in this particular case, tardiness poses
134
major challenges to the integrity of Article 60 procedure” , claiming that this renders the entire
procedure “inadmissible”. The precise basis for that assertion is never explained, but Cambodia
infers that it stems from the following two propositions: subsequent events show that there is, in
reality, no relevant dispute between the Parties, but in any case, even if there was a dispute, those
subsequent events are such that Cambodia has in some way renounc ed or lost its rights under
13Ibid., pp. 95-111.
132
Ibid., p. 207.
13Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18July 2011, I.C.J. Reports 2011 ,
p. 10, para. 37.
134
Thai Observations, para.4.29. - 42 -
Article 60 of the Statute. The link between these two propositions remains unclear, but Cambodia
maintains that these arguments are totally misconceived. The second proposition (i.e., the
supposed renunciation of rights) is not only wrong in law, but also based on a misrepresentation of
50 the facts, as was shown in Chapter 2. Consequently, Thailand’s entire argument has no basis
whatever in law.
3.20. Once it has been acknowledged — and the Court has already so ruled in its Order
indicating provisional measures — that the right to request the interpretation of a judgment is not
subject to any time -limit, the Court is then tasked with determining the legal situation that existed
at the time of the judgment itself. The Court is not tasked, in the context of a request for
interpretation, with ruling on the actions of the parties subsequent to the judgment, other than for
the purpose of determining whether there is a dispute. Were the Court to take any account of the
legal impact of the parties’ subsequent conduct (as Thailand requests), that would raise separate
issues and would necessitate specific consent in order for the Court to have competence in that
matter — as Thailand would undoubtedly be quick to point out . However, that conduct cannot
alter the meaning of the judgment that was renderedor a party’s right to request its interpretation.
3.21. Hence, the argument regarding the renunciation of rights can find no basis — or even
food for thought — in the language of Article 60 of the Statute. Article 60 is (as Cambodia pointed
out in its Application 13) worded in imperative terms. The argument is, moreover, based on
two factual assumptions: that Cambodia accepted Thailand’s actions as the correct implementation
of the Judgment; or, at the very least, that the MoU on the demarcation of the frontier presupposes
an interpretation of the Judgment which is at odds with that currently advanced by Cambodia in
this case. However, as has already been shown in Chapter2 of this Response, each of these factual
assertions is entirely unfounded, even on the basis of the documentation produced by Thailand.
Cambodia would add that, even if (quod non) the rights contained in Article 60 of the Statute could
be extinguished in this way, that would not be the case here.
2. Cambodia’s Application does not seek to resubmit a request that has already been declared
inadmissible
3.22. Thailand’s response to Cambodia’s Request is based entirely — or almost entirely —
on the brief passage in th e 1962 Judgment in which the Court refuses to respond to the first and
second submissions made by Cambodia at the end of the oral proceedings. This gives rise, in turn,
to a discussion regarding the passage in which the Court (just as briefly) considers t he relevance of
51 maps in an earlier part of the Judgment. The passages in question deserve to be reproduced in full:
“Accordingly, the subject of the dispute submitted to the Court is confined to a
difference of view about sovereignty over the region of t he Temple of Preah Vihear.
To decide this question of territorial sovereignty, the Court must have regard to the
frontier line between the twoStates in this sector. Maps have been submitted to it and
various considerations have been advanced in this con nection. The Court will have
regard to each of these only to such extent as it may find in them reasons for the
decision it has to give in order to settle the sole dispute submitted to it, the subject of
which has just been stated.” 136
135
Paras. 26 et seq.
13Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 14. - 43 -
“Referring finally to the Submissions presented at the end of the oral
proceedings, the Court, for the reasons indicated at the beginning of the present
Judgment, finds that Cambodia ’s first and second Submissions, calling for
pronouncements on the legal status of the Annex I map and on the frontier line in the
disputed region, can be entertained only to the extent that they give expression to
grounds, and not as claims to be dealt with in the operative provisions of the
Judgment. It finds on the other hand that Thailand, af ter having stated her own claim
concerning sovereignty over Preah Vihear, confined herself in her Submissions at the
end of the oral proceedings to arguments and denials opposing the contentions of the
other Party, leaving 137to the Court to word as it see s fit the reasons on which its
Judgment is based.”
3.23. In the light of the foregoing, the conclusion must be that the Court’s refusal formally to
rule on the two Cambodian submissions in question was the consequence of a purely procedural
problem stemming from the fact that these arguments had not been made prior to the hear138 and
were objected to by Thailand on the basis that they had been submitted too late . This does not
mean that there was any objection to the Court’s competence to address the me rits of the matter,
given that the Court ’s jurisdiction in this case was derived from declarations made under the
optional clause by both Parties . It seems clear that the issue which the Court had in mind in the
two passages was one and the same, namely the role of the maps ( “and various considerations ”)
submitted in respect of the frontier line that the Court ruled that it had to “have regard to ”.
Thailand itself presented the Court with a number of maps in the course of the proceedings, seeking
to show that the Temple had been placed on the Thai side of the frontier . The issue of the status of
the Annex I map was therefore debated in full before the Court and the two Parties set out
extensive arguments in this respect.
52 3.24. Finally, it is clear th at those passages do not show the Court refusing to rule on the
“maps and other considerations”, or indeed refusing to take account of Cambodia’s (or Thailand’s)
submissions in that respect. Instead, th ose passages simply indicate the form in which the Co urt
decided to take them into account — i.e., not as official submissions, but as “grounds” or
“reasons”. Indeed, the final sentence of the passage cited above implies that the Court’s
conclusions regarding those maps and considerations constitute the gro unds on which its Judgment
is based. This is in line with the Court’s explicit indication that the Parties’ acceptance of the
Annex I map was the essential issue in this case.
3.25. Thus, Cambodia maintains, on the basis of a simple analysis of the langu age used by
the Court, that the statements made by the latter in respect of the Annex I map are indeed
“inseparable” from its decision on the dispute brought before it as set out in the dispositif. Without
such statements, the first paragraph of the dispositif would simply not have been possible, and
certainly not in the form in which the Court, having duly deliberated, chose to word it. This is only
a small step (one which Thailand appears incapable of taking) from recognizing that Cambodia’s
current request for interpretation does not seek to resubmit a request that has already been declared
inadmissible in the 1962 Judgment. Thus Cambodia is merely asking the Court to explain the
findings that it reached in its 1962 Judgment. It asks the Court to do s o in particular as regards the
relationship between those findings and the meaning and scope of the dispositif of the Judgment.
13Ibid., p. 36.
138
Ibid., p. 11. It also appears implicit that the procedural objection to this late submission was based on the
Cambodia.that the impact of these submissions went beyond the bounds of the proceedings as initially brought by
13See Application, paras.3-4. C HAPTER 4
53
THE NECESSARY INTERPRETATION OF THE R EQUEST
SUBMITTED BY C AMBODIA
4.1. Thailand’s Observations prima facie present a multiplicity of arguments for the
dismissal of Cambodia’s request for interpretation. However, it should be noted that, on the
one hand, that multiplicity masks significant overlap and repetition, while, on the other hand, the
links between those arguments lack the legal logic necessary to demonstrate their relevance. For
that reason, Cambodia wishes, in this chapter, to respond to those Observations, structuring its
arguments in a simple and transparent manner on the basis of a logical approach. The chapter will
look, in turn, at the necessary construction of the dispositif in the light of the essential grounds of
the Judgment of 15 June 1962, and then at the meaning and scope of that Judgment in the context
of the interpretation requested by Cambodia.
A. Construction of the dispositifin light of the essential grounds
of the Judgment of 15June 1962
1. The function of a judgment’s reasoning
4.2. It is generally acknowledged that certain grounds in the reasoning have the force of
res judicata where th ey represent an essential precondition for the decision contained in the
140
dispositif, and that is the case far beyond the confines of the present proceedings .
4.3. One of the recurrent arguments in Thailand’s Observations concerns the issue of
res judicata. The argument is simple: since the issue of the status of the Annex I map — and
consequently that of the delimitation of the frontier — is addressed outside the dispositif of the
Judgment of 15 June 1962, and thus outside the mandatory prescriptions of the Judgment, that part
of the Judgment (i.e., its grounds) does not have binding force and cannot be used in the
interpretation of the Judgment. Thailand seeks, on the basis of a celebrated decision (a decision
141
54 cited, moreover, by Cambodia in its Application ), to show that C142odia is attempting to obtain
an interpretation of an aspect that is unconnected with the dispositif .
4.4. Numerous misunderstandings and simplistic comparisons follow on from that argument.
The misunderstandings relate not only to the issue of whether the Judgment’s grounds are of a
binding character or not, but also — and this is another issue —to the issue of the need to interpret
the dispositif in the light of the essential grounds of the Judgment, regardless of whether those
grounds have binding force in their own right. In its Order of 18 July 2011, the Court indicates,
inter alia, that the question of whether the Judgment did or did not recognize with binding force the
line shown on the Annex I map as representing the f rontier between the two Parties, and the
question of whether a particular point has or has not been decided with binding force , constitute
14This is, in particular, a view shared almost unanimously by doctrine and jurisprudence alike. See, in particulra:
G. Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour inte, Paris, Pedone, 1967, p. 247;
S. Rosenne, The Law and Practice of the International Court, Leyden, A.W. Sitjhoff, 1965, V.II, 627;
Ch. de Visscher, Aspects récents du droit procédural de l, Paris, Pedone, 1966, p. 180; and M. Bos, “The
Interpretation of International Judicial Decisions”, Revista Española de Derecho Internacional, pp. 11-50 (1981-1), p. 13.
14Thai Observations, pp. 168-169, paras. 4.75 and 4.77: Request for Interpretation of the Judgment of
20 November 1950 in the Asylum Case (Colombiv. Peru), Judgment, I.C.J. Reports 1950395. Case cited in
Cambodia’s Application, paras.22-23.
142
Thai Observations, pp.166-169, paras. 4.73-4.78. - 45 -
questions that come within the terms of Article 60 of the Statute of the Court 143. From Cambodia’s
perspective, these aspects are of fundamental importance, given that they determine how the
1962 Judgment should be construed and allow a response to the earlier questions posed by the
Court in respect of the dispute, namely what is meant by the “vicinity” of the Temple in t erritory
under the sovereignty of Cambodia and what should be understood by Thailand’s obligation to
evacuate its troops from the Temple and its “vicinity”, as indicated in the first and
second paragraphs of the dispositif. It is these aspects that Cambodia now wishes to address.
4.5. Firstly, it is necessary to recall the general function of the reasoning in a judgment in
order to understand the context. Traditionally, the reasoning in a judicial decision comprises the
body of reasons of fact or law tha t govern the terms of the dispositif . Moreover, the requirement
that judicial decisions be reasoned, which now applies to all international courts and tribunals, is
the only one that exists in this form in international law. Article 56 (1) of the Statute of the Court
could not be clearer or more direct: “The judgment shall state the reasons on which it is based.”
And Article 95 (1) of the Rules prescribes in detail the manner in which the reasoning of a
judgment is to be structured, stating that it must include, in particular, a “statement of the facts” and
“reasons in point of law”. This distinction between a simple statement of the facts and the reasons
described as being “in point of law” is not without significance and must be understood in the
context of the 1962 Judgment.
4.6. It follows that the reasoning is not merely a possibility, an option or an area of freedom
that judges can make use of as they see fit, but rather a mandatory stage in the decision which, if
present, serves a function that cannot be dismissed as being of no importance, or even non-existent,
55
as Thailand would have the Court believe.
4.7. The role of reasoning for an international court is well known and scarcely differs from
that seen in national courts where such reasoning is present: it reassures the parties that the court
has not exceeded its competence, explains to the losing State the reasons for its defeat and
potentially sets out the rules in law that will guide States and courts in the future. The act of
reasoning i s therefore important for the understanding, communication, acceptance or
implementation of judicial decisions. In practice, reasoning aids understanding of the judicial act
because it explains it, and it can aid the interpretation of an act because it provides justification for
it.
4.8. Although, in theory, it is possible for a decision not to have reasoning, there can be no
reasoning without a decision, for the reasoning exists only in relation to the decision that it justifies.
In other words, the reasoning in a judicial act does not stand alone and is merely the preliminary to
the dispositif, never an end in itself. That requires, at the very least, a rational link between the
grounds and the dispositif. For that reason, as explained above, in Artic le 95 (1) of its Rules the
Court requires, and distinguishes between, a statement of the facts and the grounds of law. While
the statement of the facts simply serves as support for a line of argument, grounds of law, by
contrast, serve as a basis for the reasoning that leads to the dispositif. The reasoning does not (in
itself) constitute a norm; rather, it is composed of facts and norms that justify or explain how the
Court has arrived at the individual norm constituted by the decision. The decision can thus be seen
both as a process and as an outcome, although that outcome cannot be understood or interpreted
without account being taken of the process.
14Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011, p. 8,
para. 31. - 46 -
4.9. Since the reasoning is an essential element, it cannot be ignored in the way that Thailand
would like. Cambodia will thus demonstrate the centrality of the reasoning in the Judgment of
15 June 1962, not only because the grounds of law are indispensable for the reading of the
dispositif of the Judgment, for its understanding and for its interpretation, in that they shed light on
the question of how the “vicinity” of the Temple should be understood, but also because those
grounds ultimately boil down to a central, if not single, ground of law which, because it stands
alone, is necessarily the pillar un derpinning the Court’s reasoning. Moreover, that ground has an
intrinsic normative value which the Court clearly makes explicit in according to the Annex I map
the actual weight of a treaty, confirming the inviolability of the frontier recognized through that
map. Given the normative character of the single ground of the 1962 Judgment, the latter’s
dispositif cannot be understood and interpreted if that ground is ignored. However, regardless of
56 the weight accorded to the central ground in the 1962 Judgment, it is, in any event,
indispensable — indeed essential— to the construction of the dispositif.
2. An essential ground having a binding normative value
(a) An essential ground
4.10. As Cambodia will show below, it is now widely acknowledged by internat ional courts
that the “essential” grounds underpinning a judicial decision must be taken into account when
interpreting the dispositif. In the present case, there is every reason to consider that the ground
regarding the binding character for the Parties of the Annex I map is “essential”, simply because it
is central and stands alone. If, in 1962, the Court chose, in its reasons, to elucidate a single, unique
aspect in order to arrive at its solution, it was because the Court indeed regarded that aspect as
“essential”. Otherwise, what would it have based its decision on?
4.11. The Judgment of 15 June 1962 is constructed in a relatively straightforward way. After
recalling the facts surrounding the beginning of the dispute and the proceedings (pp. 6- 14), the
Court states:
“To decide this question of territorial sovereignty, the Court must have regard to
the frontier line between the two States in this sector.” (P.14.)
4.12. And that is exactly what the Court then does throughout the grounds that follow, which
can be sai144o amount simply to “a” ground, so striking is its uniqueness. On pages 15 to 32 of the
Judgment the Court sets out the entire historical background to the delimitation of the frontier
underlying its acceptance by Thailand, as well a s the effectivités relating to that acceptance. The
Court uses the following pages (pp. 32- 35) to conclude its reasoning on the basis of the ground
previously set forth.
4.13. It can thus be readily seen that the 1962 Judgment contains no surplus or sec ondary
grounds that the Court could have considered and rejected. The Court goes straight to the point,
relying on a single ground. By the same token, the Court’s extended argument cannot conceivably
be treated as a series of obiter dicta. Nor can it be seen as a restatement of a principle or general
rule necessary for purposes of the ratio decidendi. It is, in reality, the unique and necessary core of
the Court’s exposition. The Court itself admits as much in the 1962 Judgment:
57 “The real question, therefore, which is the essential one in this case, is whether
the Parties did adopt the Annex I map, and the line indicated on it, as representing the
14In a Judgment with a total of 37pages. - 47 -
outcome of the work of delimitation of the frontier in the region of Preah Vihear,
thereby conferring on it a binding character.” (P. 22; emphasis added by Cambodia;
op. cit., footnote 126.)
Thailand’s undenied acceptance of the frontier in the Annex I map is the primary ground
underpinning the decision and means, as the Court makes clear, that it is irrel evant whether the
frontier corresponds to the watershed line. The Court accordingly concludes:
“Given the grounds on which the Court bases its decision, it becomes
unnecessary to consider whether, at Preah Vihear, the line as mapped does in fact
correspond to the true watershed line in this vicinity, or did so correspond in
1904-1908, or, if not, how the watershed line in fact runs.” (P. 35.)
This is a sentence which Thailand persists, unacceptably, in citing out of context . 145
4.14. The Court’s choice of grounds is the result of the freedom that it enjoys. In the
Judgment of 18 July 1966 in South West Africa, reference was made to:
“the recognized right of the Court, implicit in pa146raph 2 of Article 53 of its Statute,
to select proprio motu the basis of its decision” .
That choice is in no sense a random one, but is the result of a logical construction leading to the
dispositif and of a clear awareness of the finality sought by the Court — as it makes clear in the
1962 Judgment:
“In general, when two countries establish a frontier between them, one of the
primary objects is to achieve stability and finality. This is impossible if the line so
established can, at any moment, and on the basis of a continuously available process,
be called in question, and its rectification claimed, whenever any inaccuracy by
reference to a clause in the parent treaty is discovered.” (P.34.)
The scope deriving from the Judgment is thus perfectlydefined: it is to give stability and finality to
the frontier between the two States in the Temple sector situated in territory under the sovereignty
of Cambodia. However, by repeatedly calling this into question, Thailand is adopting an attitude
that is the precise opposite of what the Court sought to achieve in 1962.
4.15. The choice of the central and essential ground in the 1962 Judgment was therefore a
58
considered one, the meaning and scope of which were intended to bring the dispute to a definitive
end by recognizing Cambodia’s sovereignty over the territory where the Temple is situated on the
basis of a frontier recognized as being definitively established. Thus the Judgment’s formal
reasoning and the practical reasoning underlying it come together and merge. They represent the
core of the ratio decidendi, the reason for the decision (or the decisive reason), the essential
147
ground, or key element in the decision .
4.16. The Court’s reasoning always takes into consideration the arguments of the losing
party. Objective grounds thus take account of the difference between the infringement of a rule
and the wrongful conduct of the State in question. That is how Cambodia understands an aspect of
145
Thai Observations, pp.200-201, para. 5.12. Application of Cambodia, para.16.
14South West Africa (Ethiopia v. South Africa), Second Phase, Judgment, I.C.J. Reports 1966 , p. 19, para.8.
14G. Cornu, Vocabulaire juridique, Paris, PUF, third edition, 2002, pp.725-726. - 48 -
148
which Thailand makes great play : the fact that the Court excluded submissions made by
Cambodia at the oral stage which could have be en addressed in the dispositif stricto sensu of the
1962 Judgment . Over and above the fact that the Court sometimes chooses among the parties’
150
submissions in order to respond with precision to the questions put to it , it should be noted that
Cambodia’s four submissions (and five final submissions) are included in their entirety in the
Judgment of 15 June 1962. Although the dispositif addresses only the three points regarding
sovereignty over the territory in which the Temple is located, the evacuation of troops and the
return of objects, the Judgment quite simply makes the issue of the binding force of the Annex I
map an integral part of its reasoning. In other words, far from excluding that submission, the Court
59 instead makes it the sole151sis for its reasoningin the grounds, rightly considering that nothing can
be decided without it . We will see that the Court even grants Cambodia’s request to have that
map accorded treaty status, despite the fact that the submission in question, which was made at the
final hearing, could theoretically have been rejected. In the same way, the Court included in the
dispositif the precise terms of the Cambodian submission asking the Court to adjudge and declare
that “the Temple of Preah Vihear is situated in territory under the sovereignty of the Kingdom of
152
Cambodia” .
4.17. Cambodia does not deny that the question of the frontier was not the central issue in the
dispute to which its submissions related. However, the Court decided that, in order to resolve the
dispute, it was necessary to determine where the frontier lies in the region of the Temple, and
Thailand cannot ignore that fact. Just as a frontier is the basis for a State’s territory, it is also the
basis for the Judgment, the decisions in the Judgment being based on the frontier. This can also be
148Thai Observations, p.63, para. 2.68, and pp. 68-69, para. 2.72.
149At the hearing on 5 March 1962, Cambodia asked the Court, in its first submission: “To adjudge and declare
that the frontier line between Cambodia and Thailand, in the Dangrek sector, 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)” ( Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962 , p. 10). In its first and second final submissions,
made at the hearing on 20March 1962, Cambodia asked the Court:
“1. To adjudge and declare that the map of the Dangrek sector (Annex I to the Memorial of
Cambodia) was drawn up and published in the name a nd on behalf of the Mixed Delimitation
Commission set up by the Treaty of 13 February1904, 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 be tween Indo-China and Siam (Annex I to the
Memorial of Cambodia)” (ibid., p. 11).
150
In this respect, the joint declaration by Judges Tanaka and Morelli following the Judgment of 15 June 1962 is
instructive. The judges consider that the Court should have rej ected Cambodia’s submission concerning the restoration
of objects on account of it having been made late, on the same basis as the submission concerning the issue of the Ann. I
map. In support of their position, the judges state: “The claim as it is form ulated in Cambodia’s Application is directed
not to the return of the Temple as such, but rather to sovereignty over the portion of territory in which the Temple is
situated.” (p. 38; emphasis added by Cambodia) They add: “It is only if the claim by Cam bodia had had directly as its
subject the return of the Temple that it would have been possible, but then only through a liberal construction of such a
claim, to consider that that claim was concerned also with objects which, having formed part of the Temp le prior to the
Application, had, also prior to the Application, been removed from the Temple.” (P.38.) So, it was indeed because those
judges considered that Cambodia’s Request did not strictly concern the Temple itself, but rather the territory on which it
stands, that they disagreed as regards the inclusion of the submission concerning the return of objects. For its part, the
Court did not hesitate to include this submission in the operative clause, despite it, too, having been made late.
151Moreover, the Court does not intend to dismiss those submissions in its 1962 Judgment. Rather, the Court
states that “[the first two submissions] can be entertained only to the extent that they give expression to grounds, and not
as claims to be dealt with in the o perative provisions of the Judgment” (p. 36). This in no way means that the operative
clause cannot be read in the light of this essential ground whenit is necessary to interpret its meaning and scope.
152Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 11. - 49 -
seen if we assume a hypothetical scenario: Had Cambodia not made any additional submissions
asking the Court to rule on the Annex I map, would that have altered the meaning of the Judgment?
Obviously not, since, in order to determine the sovereignty of the territory in which the Temple was
located, it would in any case have been necessary to determine the location of the frontier. Without
addressing that issue, the Court would have been unable to respond to t he Application. Hence, the
Court clearly did intend to address that issue.
4.18. In the 1962 Judgment, it is therefore impossible to separate the essential ground from
the dispositif when interpreting the latter . Moreover, while Cambodia has always inte rpreted the
Judgment on that basis, Thailand does likewise, basing its position on its opposition to that ground,
which it rejects or evades. Moreover, Thailand wishes to read the dispositif of the 1962 Judgment
in a way that incorporates the entire proce ss, with the exception of the precise grounds of the
Judgment — a curious exclusion, causing it considerably to restrict both the scope of the Judgment
and its practical effect.
(b) A ground with binding normative value
4.19. The grounds underlying a judicial decision do not all have the same value. As we have
shown, in distinguishing between the “statement of the facts” and “reasons in point of law”, the
Rules of Court (Article 95 (1)) imply that “facts” cannot, in themselves, constitute “reasons” and
instead provide support for such reasons . A hierarchy must also be established within those
60 “reasons in point of law” on the basis of their significance and importance for the dispositif. While
some grounds may simply represent a restatement of a rule o f law necessary for the reasoning, it
may also be that grounds of law are stated with the aim of providing direct support for the
dispositif. This is indeed how the essential ground relied on by the Court in its Judgment of
15 June 1962 should be understood.
4.20. In its Judgment of 15 June 1962, the Court states, when drawing conclusions from its
earlier exposition:
“The Court considers that the acceptance of the Annex I map by the Parties
caused the map to enter the treaty settlement and to become an i ntegral part of it.”
(P. 33.)
It further notes that, in the event of any discrepancy:
“the map line [prevails] over the relevant clause of the treaty” (p.34).
4.21. The Court considers that map to have treaty value, which must, by definition, be
regarded as binding. An analysis of the essential ground set forth by the Court thus leads to the
conclusion that that ground has a clear normative and indeed a binding value . The fact that this
aspect does not feature in the dispositif cannot deprive it of its normative and binding value, since
this represents a findingby the Court — recognition of the binding nature of a relationship between
the two States — the validity of which predates the Judgment, constitutes the basis for that
Judgment and must, of course, continue to apply following that Judgment.
That position adopted by the Court in 1962 corresponds to its desire to stabilize the frontier.
The case law of the Court is very consistent on this point, as we shall see below. In the Territorial
Dispute between Chad and Libya, the Court stressed— with reference, moreover, to the Judgment
of 15 June 1962 — that: - 50 -
“Once agreed, the boundary stands, for any other approach would vitiate the
fundamental principle of the stability of boundaries, the importance of which has been
repeatedly emphasized by the Court ( Temple of Preah Vihear, I.C.J. Reports 1962,
153
p. 34; Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 36).”
The Court provides confirmation of that fact in Territorial and Maritime Dispute (Nicaragua v.
Colombia):
61 “The Court recalls that it is a principle of international law that a territorial
régime established by treaty ‘achieves a permanence which the treaty itself does not
necessarily enjoy’ and the continued existence of that régime is not dependent upon
the continuing life of the treaty under which the régime is agreed ( Territorial Dispute
(Libyan Arab Jam154riya/Chad), Judgment, I.C.J. Reports 1994, p. 37,
paras. 72-73).”
It is easy to see that this durability attached to the frontier is made all the more imperative by the
fact that, in the present case, the delimitation does not stem from a treaty that has ceased to be
applicable.
4.22. Contrary to a confusion maintained by Thailand , the Court did not delimit the frontier
in 1962, instead recognizing an existing frontier as binding the Parties . The binding force of the
Annex I map, an issue discussed by the Court in paragraph 31 of its Order of 18 July 2011, exists
because that binding force exists independently of the Judgment itself, and the Court recognizes it
as a pre-existing delimitation. That is the sole and essential purpose of the reasoning, allowing the
Court to ascertain in whose territory the Temple is located, and where the limits of that territory lie.
4.23. The Court made a decision prior to the dispositif of the Judgment, the decision
concerning the treaty value of the Annex I map. It was on the basis of that decision that the Court
constructed the dispositif. That was not simply an opinion, but rather what is typic ally termed a
decisional ground, a form of implied dispositif , because the decision is an inevitable consequence
of that sole normative ground and cannot exist without it. At the very least, the finding that the
Annex I map is binding as between the Parties has the force of a decision by the Court. Otherwise,
the dispositif would be purely arbitrary, since it would be unclear why the Temple was on the
Cambodian side of the frontier and how far from the vicinity of the Temple Thailand had to
withdraw its troops.
4.24. This analysis should be read in light of Thailand’s assertions in its Observations that
Cambodia is seeking to have the Court declare that the line on the Annex I map “constitutes a
62 boundary binding on the two parties”; or that “in fact the Court did not recognize any boundary” in
153
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994 , p. 37, para. 72.
15Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment,
I.C.J. Reports 2007 (II), p. 861, para. 89.
155
That clearly distinguishes this case from those in which the Court is asked to delimit (or specify) the frontier
itself. In Cameroon v. Nigeria, the Republic of Cameroon asked the Court, in particular, to “specify definitively the
frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea” (Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J.
Reports 2002, p. 318, para. 25 (f)). In Frontier Dispute (Benin/Niger), Benin and Niger asked the Court, by means of a
special agreement, to determine in particular “the course of the boundary between the Republic of Benin and the
Republic of Niger in the River Niger sector”(Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 95,
para. 2). - 51 -
1962, since this is something that the Court had “deliberately refused to do” 156. The Court did not
render that frontier line on the Annex I map binding; rather, the Court found that the line was
already binding prio r to the proceedings, and remained binding. That line was thus a kind of
“prerequisite”, which enabled the Court to determine where the Temple was located and how far
Cambodia’s territory extended. There was no reason for this to be indicated in the dispositif, since,
if the frontier line on the Annex I map already separated the two States in a binding manner, the
Temple was necessarily situated on the Cambodian side of the line.
4.25. Consequently, it is also difficult to imagine, as Thailand asserts 157, that the Court
simply used the Annex I map to ascertain the location of the Temple, relying on it merely as a piece
of evidence, without attributing any greater significance to it. In that case, there would have been
no point in the Court asserting with such force the binding treaty character of that map, which even
prevailed over the relevant treaty provisions in the event of any discrepancy.
4.26. There is therefore no need for Cambodia to claim something that is already set out
clearly in the Judgment itself, namely the fact that there is a binding frontier line between the
two States in the region of the Temple and that this stems from the line marked on the Annex I
map. Cambodia is simply asking the Court to interpret the Judgment in the light of tha t fact —
which is something that will in any event continue to exist, regardless of the interpretation currently
requested.
4.27. Moreover, whatever value may be attributed to the central reasoning of the
1962 Judgment, it is clearly impossible to interpr et the dispositif without that essential ground.
Thailand provides no refutation of that fact, which has been established in explicit statements by
158
the Court . That link now lies at the heart of an abundance of international case law.
B. Construing the dispositif in light of the essential grounds: extensive and
consistent case law across international courts
63 1. The necessary reading of the dispositif in the light of the essential ground in the
1962 Judgment
4.28. A standard form of wording is used by t he Court to establish the link between the
grounds and the dispositif of a judgment: “For these reasons, the Court [decides]”. That simple
phrase implies that there is no radical division between the grounds and the dispositif . It is not
159
even uncommon t o see a general restatement of the grounds in the dispositif itself — or even
156Thai Observations, p. 5, paras. 1.10-1.11, as well as the presentation of Cambodia’s “five errors”,
pp. 195 et seq., paras. 5.6 et seq.
157Ibid., pp. 111-118, paras.3.67-3.81.
158
See paras. 1.20-1.23, supra.
159Thus, in the operative clause of its Judgment ofFebruary 1970 in Barcelona Traction, the Court referred
directly to the grounds : “Accordingly, The Court rejects the Belgian Government’s claim by fifteenvotes to one,
twelvevotes of the majority being based on the reasons set out in the present Judgment.” (Barcelona Traction, Light and
Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970 , p. 51, para. 103.) In its
Judgment of 17 December 2002 in Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , the Court
ruled in favour of Malaysia, stating: “Given the circumstances of the case, and in particular in view of the evidence
furnished by the Parties, the Court concludes that Malaysiahas title to Ligitan and Sipadan on the basis of the effectivités
referred to above.” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports
2002, pp. 685-686, para. 149.) Then comes the operative clause, in which i t states: “For these reasons, The Court, By
sixteen votes to one, Finds that sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia.” ( Ibid., p. 686,
para. 150.) - 52 -
direct references in the dispositif to paragraphs containing grounds relating to points of law, which
can thus be regarded as having become an integral part of the decision 160. T here are numerous
possibilities. It follows that the dividing line between the two elements of a judgment is a porous
one, which is a logical consequence of the link between the two. Certain grounds, by virtue of their
reiteration or direct citation, or simply as a result of their being indispensable for the relevant
reading of the dispositif , thereby acquire the force of res judicata or are directly covered by the
force of res judicata.
4.29. It follows that the dispositif cannot be read in isolation and does not authorize Thailand
to implement the Judgment in a manner that is not envisaged by the Judgment as a whole and even
runs counter to the grounds set forth therein. Otherwise, the grounds would be entirely pointless
and the Court could issue a judgment simply by setting out the dispositif. However, the
requirement, as indicated in the Statute of the Court, that judgments contain reasoning means that
such an approach is not possible. In its Application, Cambodia states that it is the line on the
Annex I map on which the Judgment “is based” 16. That is a reference not to an obligation
contained in the dispositif, but rather to an obligation that predates the final decision by the Court.
The Court took a decision prior to the dispositif , the decisio n to “base” its ruling on that line,
64 without the support of which the dispositif cannot be construed correctly. In Cambodia’s view, it
is therefore possible to consider that, as regards the interpretation of the Judgment, this essential
ground also has the force of res judicata — or at least the force of a Court decision — in the sense
that the Court has confirmed the existence of an obligation binding on the Parties which supports
all of the obligations set out in the dispositif.
4.30. Consequently, any ground of the decision that does not exceed the “scope” of the
dispositif can be used for the purposes of interpretation. Not only does the essential ground of the
1962 Judgment fall within the “scope” of the dispositif, it is the only ground capable of making
sense of the “scope” and “meaning” of that Judgment.
2. Case law which began under the Permanent Court of International Justice and has
continued under the present Court
4.31. As indicated above, the sole purpose of a request for interpretation is to have the Court
specify the intention it had when taking a decision by explaining or clarifying that decision. Thus,
in the Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), the Permanent Court stated:
“The interpretation adds nothing to the decision, which has acquired the force of
res judicata, and can only have binding force within the limits of what was decided in
the judgment construed . . . [The Court] confines itself to expla162ng, by an
interpretation, that upon which it has already passed judgment.”
160
In the Judgment of 11 September 1992 in El Salvador/Honduras, the Chamber of the Court systematically
refers, in each of the paragraphs of the operative clause, to the specific reasoning in the Judgment. For example: “For
the reasons set out in the present Judgment, in particular paragr68 to 103 thereof, The Chamber, Unanim ously,
Decides that . . .” ( Land, Island and Maritime Frontier Dispute (ESalvador/Honduras: Nicaragua intervening),
Judgment, I.C.J. Reports 1992, p. 610, para. 425; see also ibid. , p. 611, para. 426, p. 612, para. 427, p. 613, para. 428,
p. 614, para. 429, p. 615, paras.430-431, and p.616, para. 432.)
16Application of Cambodia, para.45.
162
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No.11, 1927, P.C.I.J., Series A,
No. 13, p. 21. - 53 -
Consequently, when sei sed of a request for interpretation of a judgment, the Court must confine
itself solely to explaining the meaning and scope of that which has been decided with binding force 163
in the judgment. This fundamental pri nciple established by the Permanent Court is
systematically reiterated by the present Court . 164
4.32. Consequently, the interpretation can only relate to those passages of the decision that
have the force of res judicata — primarily, of course, the dispositif. Although the interpretation
must look at the dispositif, it cannot be limited to that. Thus certain grounds of the decision may be
taken into account. In its Opinion in the Polish Postal Service in Danzig, the Permanent Court
endeavoured to highlight the links between the grounds and the dispositif. In so doing, it stated that
65
the reasons contained in a decision which “go beyond the s165e of the operative part, have no
binding force as between the Parties concerned” . Hence , conversely, reasons that do not go
beyond the scope of the dispositif may be of a binding character. On the other hand, obiter dicta
and surplus reasons cannot be taken into consideration in the context of a request for interpretation.
However, the Permanent Court also indicated that:
“all the parts of a judgment concerning the points in dispute explain and complete
each other and are to be taken into acco166 in order to determine the precise meaning
and scope of the operative portion” .
4.33. The grounds providing the neces sary support for the dispositif must therefore be taken
into account in the context of a request for interpretation. That was what the Permanent Court
ruled in the Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów). Having indicated that
a request for interpretation must relate to elements decided with binding force, the Permanent Court
immediately specified:
“That does not imply that it must be beyond dispute that the point the meaning
of which is questioned is related to a part of the judgme nt having binding force. A
difference of opinion as to whether a particular point has or has not been decided with
binding force also constitutes a case which comes within the terms of the provision in
16Ibid., p. 11.
164
Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru),
Judgment, I.C.J. Reports 1950, p. 402; Application for Revision and Interpretation of the Judgment of 24 February 1982
in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya),
Judgment, I.C.J. Reports 1985, p. 218, para. 46, and p. 223, para. 56; Request for Interpretation of the Judgment of
31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. Un ited States of America)
(Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 328,
para. 63; 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), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 ,
para. 44.
16Polish Postal Service in Danzig, Advisory Opinion, 1925, P.C.I.J., Series B, No. 11, pp. 29-30.
166
Ibid., p. 30. In that case beforethe Permanent Court, ProfessorVerzijl stated:
“The interpretations of the legal situation contained in these decisions are all of equal value,
regardless of whether, from a formal point of view, they are part of the ‘grounds’ or the ‘operative clause’
of the judgment, provided solely that they are not — to borrow a term from Anglo- Saxon case law —
mere obiter dicta. The genuine binding interpretative force of rulings of that kind also covers all of their
essential elements, where the arbitrator or jud ge sought to formulate his/her opinion on the situation in
law.” (Ibid., Documents of Procedure, P.C.I.J., Series C, No. 8, p. 446.) [Translation]
The decisions referred to here are those that are of declaratory character, including interpretatiets.udgmn - 54 -
question, and the Court cannot avoid the duty incumbent upon it of interpreting the
judgment i167o far as necessary, in order to adjudicate upon such a difference of
opinion.”
In other words, the dispute need not necessarily relate exclusively to the sole part of the judgment
that is regarded as having b inding force, namely the dispositif. It can also relate to grounds that
explain and complete the dispositif. In the case in question, the Permanent Court considered that:
“the fact that the grounds for the judgment contain a passage which one of the Par ties
construes as a reservation (the effect of which would be to restrict the binding force of
Judgment No. 7) or as affirming a right inconsistent with the situation at law which the
other Party considers as established with binding force, allows of the C ourt’s being
66
validly requested to give168 interpretation fixing the true meaning and scope of the
judgment in question” .
4.34. The present Court asserts even more clearly , in the context of the request for
interpretation of the Judgment of 11 June 1998 in the case concerning the Land and Maritime
Boundary between Cameroon and Nigeria, that:
“any request for interpretation must relate to the operative part of the judgment and
cannot concern the reasons for the judgment except in so far as these are insepar able
from the operative part” . 169
That has been repeated by the Court on two occasions. First, in the Request for Interpretation of
the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America)(Mexico v. United States of America), the Court recalled that:
“a request for interpretation must relate to a dispute between the parties relating to the
meaning or scope of the operative part of the judgment and cannot concern the reasons
170
for the judgment except in so far as these are inseparable from the operative part” .
And then, in the Order indicating provisional measures in the present case, the Court again made it
clear that:
“it is established that a dispute within the meaning of Article 60 of the Statute must
relate to the operative clause of the judgment in question and cannot concern the
reasons for the judgment except in so far as these are inseparable from the operative
171
clause” .
16Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A,
No. 13, pp. 11-12; op. cit., para. 2.25, supra.
16Ibid., p. 14.
169
Request for Interpretation of the Judgment of 1June 1998 in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon),
Judgment, I.C.J. Reports 1999 (I), p. 35, para. 10.
170
Request for Interpretation of the Judgment of 31 March 2004 in the Cas e concerning Avena and Other
Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Provisi onal Measures,
Order of 16 July 2008, I.C.J. Reports 2008, p. 323, para. 47.
17Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 ,
para. 23. - 55 -
The link between the reasons and the dispositif is asserted, mutatis mutandis, in other cases which
do not relate specifically to the issue of interpretation but which address that aspect. Thus, in the
Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court states:
“70. The Court observes that the reasoning contained in paragraphs 306-319 of
the 2007 Judgment, which was an essential step leading to the dispositif of that
Judgment, is also unequivocal on this point . . . Without such reasoning, it may be
difficult to understand why the Court did not fix an endpoint in its decision. With this
reasoning, the decision made by the Court in its 2007 Judgment leaves no room for
any alternative interpretation.” 172
67 4.35. It follows indisputably from the case law of the Court that interpretation of the meaning
and scope of the dispositif may require that reference be had to the grounds where these form the
necessary basis for that dispositif 17. Moreover, reference is consistently made to this principle in
arbitral awards, as well as in the case law of a number ofn iternational courts.
3. Case law that has spread to arbitral tribunals and other international courts
4.36. Whether one looks at arbitral tribunals or international courts, the principles established
as regards the interpretation of judicial decisions rem ain the same. In various awards and
judgments, arbitrators and judges have reiterated that, in the context of a request for interpretation,
it falls to them to identify those elements of the decision that are of a binding character and
consequently, where necessary, to interpret the decision’s grounds.
4.37. Indeed, there are numerous arbitral awards that proceed in this manner. It should be
noted, first of all, that the Permanent Court of Arbitration insisted on the links between grounds and
dispositif in The Pious Fund of the Californias. In its view:
“all the parts of a judgment or decree concerning the points debated in the dispute
enlighten and mutually supplement each other, and . . . they all serve to render precise
the meaning and the bearing of the dispositive . . . to determine the point174pon which
there is res judicata and which therefore cannot be put in question” .
4.38. More recently, basing its ruling on the interpretative Judgment of the Permanent Court
in the Factory at Chorzów case, the court of arbitration, addressing a request for an interpretation
of its award in the Delimitation of the Continental Shelf between the United Kingdom and France ,
indicated:
“[that it] considers it to be well settled that in international proceedings the authority
of res judicata, that is the binding force of the decision, attaches in principle only to
the provisions of its dispositif and not to its reasoning. In the opinion of the Court, it
is equally clear that, having regard to the close links that ex ist between the reasoning
172Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to
Intervene, Judgment, 4May 2011, para. 70; op. cit., footnote120, p. 45.
173This is a very widely held view among judges and in legal literature. See, for example: S. TorresBernárdez,
“A propos de l’interprétation et de la ré vision des arrêts de la Cour internationale de Justice”, in Le droit international à
l’heure de sa codification: études en l’honneur de Roberto Ago, Milan, Giuffrè, 1987, III, p. 469; and L. Cavaré,
“Les recours en interprétation et en appréciation de la légalité devant les tribunaux internationaux”, ZaöRV, pp. 482-520
(1954), p. 488.
174
The Pious Fund of the Californias (United States of Americv. United Mexican States) , Arbitral Award of
24 October1902, Reports of International Arbitral Awards (RIA A), Vol. IX, p. 12. - 56 -
of a decision and the provisions of its dispositif , recourse may in principle be had to
the reasoning in order to elucidate the meaning and scope of the dispositif. From this
68 it follows that under certain conditions and within ce rtain limits, the reasoning in a
decision may properly be invoked as a ground for requesting an interpretation of
provisions of its dispositif.” 175
Similarly, the arbitral tribunal in the Laguna del Desierto case stated:
“The force of res judicata of an international award applies, primarily, to its
operative part, i.e., the part in which the Court rules on the dispute and states the rights
and obligations of the parties. The legal precedents have also established that the
provisions of the preambular part, which are the logically necessary antecedents of the
operative provisions, are equally binding.” 176
In support of that statement, the tribunal referred directly to the interpretative Judgment of the
Permanent Court in the Factory at Chorzów and to the inte rpretative decision of the court of
arbitration in the Delimitation of the Continental Shelf between the United Kingdom and France . 177
4.39. The case law of arbitral courts and tribunals, supported by the case law of the Court,
clearly shows that thegrounds can be taken into consideration in order to shed light on the meaning
and scope of the decision made in the dispositif. Moreover, in its decision interpreting the award in
the Delimitation of the Continental Shelf between the United Kingdom and France , the court of
arbitration stated that:
“if findings in the reasoning constitute a condition essential to the decision given in
the dispositif, these findings are to be consi178ed as included amongst the points
settled with binding force in the decision” .
4.40. Thus, in these various examples, arbitral tribunals have no hesitation, not only in
linking the construction of the dispositif with the judgment’s essential grounds, but also in
conferring on those grounds a binding force attaching to them an authori ty equivalent to that of
res judicata. Other international courts have arrived at the same conclusion.
4.41. The same is true of the Court of Justice of the European Union. Thus the Court of
Justice of the ECSC affirmed at a very early stage that the parts of a text that can be the subject of
interpretation can obviously only be:
“those which express the decision of the Court on the matter submitted to it: the
operative part and such of the grounds as determine it and are essential for that
175
Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and
the French Republic, Decision of 14March 1978, RIAA, Vol. XVIII, p.365, para. 28.
17Dispute concerning the Frontier Line betwe en Boundary Post 62 and Mount Fitzroy (Argentina v. Chile),
Arbitral Award of 21October1994, RGDIP, 1996, p. 551, para. 70.
17Ibid.
178
Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and
the French Republic, Decision of 14March 1978, RIAA, Vol. XVIII, p.366, para. 28. - 57 -
69 purpose; those are the parts of the judgment which constitute the actual decision. On
the other hand, the Court is not called upon to interpret ancillary matter which
179
supplements or explains those basic grounds.”
4.42. Moreover, when examining that first request for interpretation of a judgment by the
Court of Justice of the ECSC, Advocate General Lagrange based his opinion, to a very large extent,
on the interpretative Judgment of the Permanent Court in the Factory at Chorzów . He insisted, in
particular, that the Court had acknowledged in that decision that “it was within its jurisdiction,
where appropriate, to give a rulin180n the question of whether one or other part of the judgment did
or did not have binding force” .
In Willame v. Commission, the Court further stated:
“In order to decide whether the operative part of a judgment is or is not
ambiguous or obscure, it should be read together with the applicant’s conclusions and
the statement of the grounds of the said judgment.” 181
4.43. In other words, although the request for interpretation must concern a point with the
force of res judicata, in determining whether the dispositif is ambiguous or obscure, the court must
take account of all elements of the dispute that resulted in the judgment that is to be interpreted.
This has since become something of a leitmotif occurring repeatedly in the case law of the
Court. By way of illustration, in Maindiaux et al. v. Economic and Social Committee and Diezler
et al., the Court of Justice affirmed that:
“an application for interpretation must essentially seek an interpretation of the
operative part together with the essential grounds” . 182
183
It is easy to see, without providing an excessive number of references , that the Court of
Justice of the European Union is in li ne with the case law of the International Court of Justice and
of arbitral tribunals. Just like the Permanent Court and the present Court, the Court of Justice of
the European Union can thus decide which parts of a judgment — some of which may be of a
70 binding character — must be read, in addition to the actual dispositif , in order to understand the
judgment. The Court is thus perfectly entitled to take the essential grounds into consideration in
the context of a request for interpretation.
4.44. For its part, the European Court of Human Rights follows the case law of the other
courts in this respect. In its judgment interpreting the judgment in Ringeisen , the Court declares
that, when it is seised of an application for an interpretation:
179
ASSIDER v. High Authority of the ECSC, 5/55, ECR 1954-1955, p. 278.
18Ibid., p. 290.
18Willame v. Commission, 110/63, ECR 1966, p. 419.
182
Maindiaux et al. v. Economic and Social Committee and Diezler et al., 146 and 431/85, ECR 1988, p. 2003,
para. 6.
18For their part, the Advocates General frequently refer to this requirement in their opinions. In High
Authority v. Collotti, for example, Advocate General Roemer affirmed that “the case-law of the Court has already
decided that not only the operative part of the judgment but also the grounds forming the basis of the judgment may be
the subject of an application for interpretation” (Opinion in High Authorv. Collotti, 70/63 bis , ECR 1965, p. 361).
And in José Alvarez v. European Parliament, Advocate General van Themaat indicated that it is possible to take account
of “those paragraphs of the judgment which explain and thus determine the operative part” (Opinion in José Alvav.z
European Parliament – Interpretation, 206/81 bis, ECR 1983, p. 2876). - 58 -
“it goes no further than to clarify the meaning and scope which it intended to give to a
previous decision which issued from its own184liberations, specifying if need be what
it thereby decided with binding force” .
4.45. Referring expressly to that judgment, the Inter-American Court of Human Rights, in its
first decision on a request for interpretation, stated, in turn:
“The interpretation of a judgment involves not only precisely defining the text
of the operative parts of the judgment, but also specifying its185ope, m eaning and
purpose, based on the considerations of the judgments.”
Since then, that Court, which frequently receives applications for the interpretation of its
judgments, has had the opportunity to refine its case law. Thus, in Loayza Tamayo, it states:
“The request or petition for interpretation of a judgment may not be used as a
means of challenging it, but must be made for the sole purpose of working out the
meaning of the decision when one of the parties maintains that the text of its operative
paragraphs or its consideranda is unclear or imprecise, provided those consideranda
affect that operative paragraph.” 186
187
This considerationhas since formed part of all of the Court’s interpretative judgments .
71 4.46. Given that the grounds of the Judgment of 15 June 1962 are essentially devoted to the
central issue of the determination of the frontier line between the Parties in the Templesector, it is
scarcely conceivable that any reading of the Judgment could deny this reality. Contrary to what
Thailand asserts throughout its Observations of 21 November 2011, the Court could not have
decided in 1962 that the Temple fell within Cambodia’s sovereignty without having first
established the extent of the territory in which the Temple is situated. To recognize one (the
Temple) and deny the other (the recognized line between the two States) is to separate two logical
elements which are unable to exist independently of each other. However, that is what Thailand is
seeking to show by artificially separating the dispositif from the essential grounds of the Judgment.
In so doing, it is not only challenging and contradicting the work of the Court, but also ignoring the
inherent overall logic of the Judgment.
18Ringeisen v. Austria (Interpretation of the Judgment of 22 June 1972), 26 June 1973, ECHR, Series A, No. 16,
p. 13.
185
Case of Velásquez-Rodríguez v. Honduras, interpretation of the judgment on reparations and costs, Judgment
of 17 August 1990, I/A Ct. HR, Series C, No. 9, para. 26.
18Case of Loayza Tamayo v. Peru, interpretation of Judgment of 17September 1997, Order of 8March 1998, I/A
Ct. HR, Series C, No. 47, para. 16.
18See, recently: Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the
Comptroller”) v. Peru, interpretation of the judgment on preliminary objections, merits, reparations and costs, Judgment
of 24 November2009, I/A Ct. HR, Series C, No. 198, para. 11; Case of Rosendo Cantú et al. v. Mexico, interpretation of
the judgment on preliminary objections, merits, reparations and costs, Judgment of 15 May 2011, I/A Ct. HR, Series C,
No. 225, para. 10; Case of Salvador Chiriboga v. Ecuador, interpretation of the judgment on reparations and costs,
Judgment of 29 August 2011, I/A Ct. HR, Series C, No. 230, para. 11; Case of Abrill Alosilla et al. v. Peru,
interpretation of the judgment on preliminary objections, merits, reparations and costs, Judgment of 21 November2011,
I/A Ct. HR, Series C, No. 235, para.10. - 59 -
C. Meaning and scope of the Judgment of 15June 1962
1. The interpretation requested by Cambodia
4.47. The interpretation of a judicial decision involves a logic conveyed, in the case of the
International Court of Justice, by the wording of Article 60 of its Statute: it is necessary to clarify
the “meaning and scope” of the judgment that the Court is asked to interpret so that the parties
understand the implied — and sometimes implicit — logic of the judgment. Consequently, an
interpretation is not a static reading of the dispositi, but rather a case of decipherin g its deeper
meaning, projecting that meaning beyond the confines of the text in order to determine the
consequences. The meaning of the Judgment of 15 June 1962 concerns the question of whose
territory the Temple of Preah Vihear is located in, which enta ils the question of where exactly the
Thai troops have to withdraw to when evacuating that territory. Its scope is to bring to an end a
dispute between two States by establishing a boundary between their two territories as a result of
the placement of the Temple in territory that is under the sovereignty of one of the Parties. That is
the only way that it is possible to know where exactly the Thai troops have a continuing obligation
to withdraw to. As Cambodia has indicated and will demonstrate below, the fact that this is termed
a “territorial” dispute changes nothing. Every territory has a boundary, and every decision on a
territory entails the siting of a boundary.
4.48. Cambodia thus considers that the purpose of the Judgment of 15 June 1962 was
definitively to bring to an end the dispute between the Parties. The interpretation of the Judgment,
by giving it practical effect (that is to say, by giving the dispositif a meaning and scope that
prevents the matters decided by it from remaining inoperative), will allow the Parties to resolve this
72 dispute definitively and then proceed with the implementation of the Judgment in accordance with
the Court’s interpretation. In Cambodia’s view, this is not just possible, but indispensable.
4.49. Contrary to Thailand’s claims, Cambodia is not seeking, via the Court’s interpretation
of the 1962 Judgment, to have the Court delimit the frontier. That delimitation has already been
carried out, and the Court recognized that fact in 1962 in a manner that requires t he Parties to
respect that obligation. The 1962 Judgment merely implies negotiations to determine the precise
course of the frontier, not to delimit it. The demarcation and marking out of the frontier is the task
of the MoU of 14 June 2000.
4.50. By the same token, Cambodia is certainly not asking the Court to take a decision
regarding the entire frontier in the Dangrek region as depicted in the Annex I map. Cambodia is
limiting its Request for interpretation to the disputed area. Thailand is effective ly seeking to deny
the existence of any dispute regarding the first paragraph of the dispositif of the 1962 Judgment,
explaining that the Court would otherwise have ruled on the entire frontier in the Dangrek region in
1962. Cambodia considers that there is indeed a dispute as to the interpretation of the
first paragraph of the dispositif , and that this relates solely to the area at issue. The Court “finds
that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia”. In
Cambodia’s view, the necessary interpretation of the first paragraph of that dispositif cannot relate
solely to the perimeter of the Temple itself, limited to its strict precincts . The Court not only finds
that the Temple belongs to Cambodia, but also states that it is situated in “territory” which is under
the “sovereignty of Cambodia”. The practical effect of such a statement is that an area of territory
extends beyond the confines of the Temple itself, an area of territory that must correspond to the
boundaries established by the Court in its groundson the basis of the Annex I map. - 60 -
4.51. The Court accordingly draws the logical conclusion — “in consequence” — that
Thailand is obliged 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 dispositif
of the 1962 Judgment). Here, too, the Court makes important points, since it indicates that those
Thai forces must withdraw from the Temple “or its vicinity” — a statement which, in Cambodia’s
view, would have been pointless had the Court intended to limit that withdrawal to the precincts of
the Temple. The Court also specifies that the vicinity of the Temple is “on Cambodian territory”,
which clearly links the second paragraph of the dispositif with the first paragraph. Again, there
would have been no need to specify that had it not been the territory under the sovereignty of
Cambodia corresponding to that defined in the grounds of the Judgment.
4.52. Since the obligation to withdraw Thai forces relates to an area that is under Cambodian
73 sovereignty, this must be a continuing obligation. To reduce that to an immediate obligation would
render the Judgment of the Court totally illogical. How i s it possible to imagine that such an
obligation could be effective only at the time the Judgment was delivered in 1962? The principle
of respect for territorial integrity means that foreign forces must permanently withdraw from an
area of land in respect of which the world’s highest international court has decided that the land in
question belongs to another State (here, Cambodia), withdrawing behind a line recognized by the
Court. Put very simply, the obligation to withdraw must — by definition — be a continuing
obligation, given that it applies to territory that is under the sovereignty of Cambodia. By denying
188
that reality, Thailand is confusing what it regards as the general application of the principle of
territorial integrity with the special case in which that obligation is dictated by a specific decision
taken by the Court.
4.53. Cambodia wishes to emphasize that Thailand has, it seems, clearly never accepted the
loss of the Temple following the 1962 Judgment. Its construction of the Judgment follows on from
that. Prevented from contesting Cambodia’s ownership of the Temple, it has derived a reading of
the Judgment which entirely denies the consequences entailed by that Judgment. That reading,
which can be described as “minimalist”, not only fails to correspond in any way to what the Court
decided in its dispositif in 1962, but also means that the Judgment is impossible to implement in
practice. It is for that reason that Cambodia, faced with an interpretation of the 1962Judgment that
differs radically from its own, has requested that the Court indicate the correct interpretation.
2. Thailand’s incorrect interpretation of the Judgment
4.54. As Cambodia has shown, there is a need in this case for the Court to interpret the
Judgment of 15 June 1962. That necessary and desired interpretation can be effected only by
means of a comprehensive construction of the dispositi,fincluding its essential grounds. In order to
arrive at the interpretation that Cambodia considers to be the correct one, the C ourt must dismiss
the counter-arguments put forward by Thailand and find its interpretation to be without merit. It is
on those issues that Cambodia will now focus.
74 (a) Interpreting is not revising
4.55. The Court is competent, the Application is admissible, and the interpretation is possible
and necessary. Cambodia considers this to be a genuine request for interpretation. It is simply a
request for an interpretation, not for a revision of the 1962 Judgment. The objective is thus not to
“reinterpret” on the basis of the original proceedings, but to interpret the dispositif on the basis of
18Thai Observations, pp.233-238, paras. 5.50-5.56. - 61 -
what the Court decided. In this case, by refusing to accept the interpretation that is inherent in the
Judgment, Thailand is seeking to have the 1962 Judgment “revis ed”. Its Observations show that it
is going back over the entire process, right back to (and even beyond) Cambodia’s Application in
1959, thereby essentially implying that the Court erred in its Judgment of 15 June 1962, so that the
only way for Thailand to turn that situation to its advantage is to strictly isolate the dispositif from
its essential grounds in order to reconstruct its own grounds and convince the Court that that
represents a possible reading of the Judgment. This amounts to a disguised attempt to persuade the
Court that there were facts that were not taken into account when the Court considered the case
between 1959 and 1962. What Thailand clearly wants is not to have the Judgment interpreted by
the Court under Article 60, but to have it revised under Article 61 of the Statute of the Court. That
is, of course, completely impossible and unrealistic.
4.56. Nevertheless, Thailand has gone back over the case from the beginning, insisting,
a contrario, on an interpretation consistent with except for the strict perimeter of the Temple —
what it sought to achieve in 1959- 62 and which the Court rejected. Thus what Thailand is
effectively saying is that, either the Court should not provide an interpretation at all, so that
Thailand can impose its own unilateral interpretation of the Judgment, or that the Court should do
so by revisiting all the elements of the proceedings between 1959 and 1962. It is clear that the
interpretation can relate only to the period from 15 June 1962 with a view to ana lysing the
Judgment as rendered on that date, and can take account of later events solely to the extent that
they demonstrate the existence of a dispute, not as subsequent practices serving as a basis for the
Court’s interpretation 189
. It is not possible to rewrite the Judgment of 15 June 1962.
4.57. Thailand’s reinterpretation of the facts can clearly be seen in the way that it seeks to go
75 back over the meaning of terms used in the course of proceedings between 1959 and 1962, despite
the fact that, as Thailand itself admits, the only terms that should be taken into account are those
used in the dispositif of the Judgment, namely “territory”, “vicinity”190d “area”. Moreover,
Thailand insists that the issue concerned the “ruins of the Temple” , which would imply that what
it repeatedly refers to as “the sole dispute” concerned only the perimeter of those “ruins”.
However, that is not relevant, and relates only to the state of disrepair of the sanctuary, not to the
perimeter stricto sensu. Talk of the “ruins of Pompeii” relates not to their perimeter , but to the
state of conservation of the site. It is necessary, therefore, to escape from this semantic argument,
in which every word is dissected, where everybody can find whatever they want with the aid of
extracts from the appropriate dictionary. It is clear, for example, that the term “vicinity” has
several meanings. The only meaning that counts is the one that the Court intended.
4.58. Nevertheless, Thailand’s sole response, ever since the process of inc luding the Temple
on UNESCO’s World Heritage List began, has been to assert, in an avowedly unilateral manner,
that it has always regarded the boundary of its territory as lying at the very edge of the Temple.
191
This is both contrary to the facts and legally misconceived, since that delimitation conflicts
directly with the grounds of the Judgment of 15 June 1962. Thus Thailand has embarked on a kind
of double denial of the 1962 Judgment, refusing to construe the dispositif in the light of its essential
grounds and interpreting it in a manner that runs counter to those same essential grounds.
189
“Moreover, the Court, when giving an interpretation, refrains from any examination of facts other than those
which it has considered in the judgme nt under interpretation, and consequently all facts subsequent to that judgment.”
(Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No11, 1927, P.C.I.J., Series A, No. 13,
p. 21), op. cit., para. 2.14.
19Thai Observations. See thewhole of Chap.2, pp. 19-76, paras. 2.1-2.80, where reference is made repeatedly to
the “ruins of the Temple”.
19See paras. 2.86-2.97, supra. - 62 -
(b) The lack of precision regarding the disputed area, according to Thailand
4.59. Thailand downplays the wording of the first paragraph of the dispositif of 1962, namely
the fact that the Temple is situated in territory “under the sovereignty of Cambodia”. It thereby
totally refuses to accept the overall sense of the Judgment, its practical effect and its implied scope.
Thailand argues, by contrast, that a new disp ute began in 2007, regarding the delimitation of a
disputed area measuring 4.6 sq km. In its view, “Cambodia has failed to identify the further area
from which it now contends the 1962 Judgment obliged Thailand to withdraw” 19. This is an
attempt to sow confusion in the minds of the judges.
4.60. In 1962, given that the Judgment concerned a territorial dispute regarding sovereignty
over the Temple, it was necessary to establish the location of the frontier in order to determine
76 where the Temple was situat ed, to whom it belonged and behind which sovereign perimeter the
troops of the State that did not have sovereignty were required to withdraw. Consequently, the
Court was faced with a Temple that it had to place in the territory of one of the States, and i t
responded by recognizing that a frontier existed and that, on the basis of that frontier , the Temple
belonged to Cambodia. It was concerned, therefore, with the question of the location of the
frontier, not with defining an area belonging to Cambodia or Thailand, although it is clear that the
dispute relates only to a limited perimeter . The contested area that Thailand now regards as a new
dispute is simply the one between the frontier claimed by Thailand and the frontier in the Annex I
map that the Court recognized as pertinent in 1962. Shortly after the Judgment, and then again
from 2007, there was disagreement regarding the perimeter of the territory in question on account
of incursions by Thai troops following the Temple’s inclusion on UNESCO’s Worl d Heritage List.
To assert that this is a new dispute is to ignore the history of the dispute and the geography of the
region in question.
4.61. In reality, two conflicting interpretations come together in that disputed area. The area
is bordered to the north by the line on the Annex I map and ends in the east and west at the points
where the line on the Annex I map meets the frontier claimed by Thailand.
4.62. In its Application for interpretation (paragraph 44), Cambodia stressed that Thailand’s
obligation to withdraw its troops and other armed forces from the vicinity of the Temple under the
second paragraph of the dispositif applied to all of Cambodia’s territory in the Temple area,
including the area of around 4.6 sq km that is unilaterally and arbi trarily claimed by Thailand.
Indeed, that was the area at the centre of the debate in the initial case. As Cambodia has indicated,
the interpretation of the Judgment of the Court must be based on the facts that were relevant at the
time of the Court’s ruling.
4.63. It is useful to remind the Court that Cambodia’s position was based on the frontier line
indicated on the Annex I map, which placed the Temple of Preah Vihear and its vicinity in
Cambodian territory. By contrast, the Thai position was that the frontier should follow the
watershed line, which resulted, according to Thailand, in the Temple area being situated in Thai
territory.
4.64. In support of that position, Thailand presented the findings of its expert,
Dr. Schermerhorn, who limited himself to identifying the watershed line in that area. In his expert
77 report, contained in Annex 49 to Thailand’s Counter -Memorial, Dr. Schermerhorn included both - 63 -
the Annex I map for the Temple area and his own map showing the supposed watershed line, both
to a scale of 1:50,000. As he indicated, it was possible to superimpose one map on the other in
order to compare them.
4.65. The map on the following page shows the comparison made by Dr. Schermerhorn by
superimposing one map on the other. The line highlighted in green is the line on the Annex I map,
while the line highlighted in red shows the position of the watershed line according to Thailand.
To the east and west of the Temple, the two lines meet. In the middle, however, there is an area
where the two lines diverge. That corresponds to the 4.6 sq km which was at the centre of the
dispute in the initial case and remains disputed today.
4.66. In its Judgment, the Court clearly ruled in favour of the line on the Annex I map. The
watershed line relied on by Thailand was judged irrelevant. The present dispute concerns the
interpretation of the Judgment of the Court on account of Thailand’s refusal to recognize the
binding force attached to the line on the Annex I map in the vicinity of the Temple, and of
Thailand’s unilateral action in establishing a frontier around the Temple that takes no account of
that line whatsoever.
(c) The distinction, according to Thailand, between a territorial dispute and a frontier dispute
4.67. Thailand insists, in its Observations, on the need to distinguish between a territorial
dispute — as seen in the proceedings leading to the 1962 Judgment — and a dispute relating
directly to a frontier19. This distinction, albeit possibly significant as regards the manner in which
a court approaches a dispute, and thus the method used in seeking the truth, cannot disguise the fact
that the end-result must be regarded as comparable, or even similar.
4.68. Indeed, as Thailand points out 19, the Court was not asked to rule directly on t he issue
of the frontier in 1962. Cambodia does not contest that at all. However, the two Parties’
interpretations differ as regards the consequences of the recognition, in the 1962 Judgment, of the
line on the Annex I map. In Thailand’s view, the refer ence to the Annex I map is simply evidence
78 that the Temple is situated in Cambodia. In Cambodia’s view, the Court did not rule on the
question of the frontier, but rather highlighted the fact that the border already existed prior to the
case in order to r ule on the dispute brought before it, which is not the same thing. Thailand is
therefore relying on a position that defies reality — claiming that, the conflict having been “solely”
territorial in 1962, the Court could not have recognized the boundaries of the two territories. This
ignores a fairly simple reality, namely that when the Court rules on a territorial dispute, it
necessarily ends up delimiting the claims of the two States, which it simply carries out more
directly — and doubtless in a somewhat different manner — if asked to rule specifically on the
question of the frontier. The fact that the question and the method are different does not mean that
the outcome cannot be the same. Territorial boundaries must exist, since otherwise States could
not know the extent of their territories, and in this case Thailand could not know the extent of its
obligation to withdraw troops.
19Thai Observations, p.244, para. 5.64.
19Thai Observations. See, in particular, pp.214-218, paras.5.27-5.32.
19Ibid., p. 77, para. 2.80. - 65 -
4.69. The Court itself has on several occasions had cause to highlight the coincidence of
outcomes for these two supposedly different types of dispute. Thus, in the Frontier Dispute , the
Court states:
“The Parties have argued at length over how the present dispute is to be
classified in terms of a distinction sometimes made by legal writers between ‘frontier
disputes’ or ‘delimitation disputes ’, and ‘ disputes as to attribution of territory ’.
According to this distinction, the former refer to delimitation operations affecting what
has been described as ‘ a portion of land which is not geographically autonom ous’
whereas the object of the latter is the attribution of sovereignty over the whole of a
geographical entity . . . In fact, however, in the great majority of cases, including this
one, the distinction outlined above is not so much a difference in kind but rather a
difference of degree as to the way the operation in question is carried out. The effect
of any delimitation, no matter how small the disputed area crossed by the line, is an
apportionment of the areas of land lying on either side of the line . . . Moreover, the
effect of any judicial decision rendered either in a dispute as to attribution of territory
or in a delimitation dispute, is necessarily to establish a frontier . It is not without
interest that certain recent codifying conventions have used formulae such as a treaty
which ‘establishes a boundary’ or a ‘boundary established by a treaty’ to cover both
delimitation treaties and treaties ceding or attributing territory (cf. Vienna Convention
on the Law of Treaties, Art.62; Vienna Convention on Succession of States in respect
of Treaties, Art.11).” 195
4.70. Similarly, in the Territorial Dispute, the Court draws no distinction between a
territorial dispute and a frontier dispute.
“75. It will be evident from the preceding discussion that the dispute before the
Court, whether described as a territorial dispute or a boundary dispute , is
conclusively determined by a Treaty to which Libya is an original party and Chad a
79 party in succession to France. The Court ’s conclusion that the Treaty con tains an
agreed boundary renders it unnecessary to consider the history of the ‘ Borderlands’
claimed by Libya on the basis of title inherited fro196he indigenous people, the
Senoussi Order, the Ottoman Empire and Italy.”
4.71. It is interesting, therefor e, to note that the two cases referred to above are described in
different ways (Frontier Dispute for the former and Territorial Dispute for the latter), but the Court
overrides that distinction in arriving at solutions that it considers similar, regardless of the way the
disputes are described.
4.72. In the above extract from the Judgment in the Frontier Dispute, the Court further states
that the “effect of any delimitation, no matter how small the disputed a197 crossed by the line, is an
apportionment of the areas of land lying on either side of the line” . It is thus worth noting that in
the present case the disputed area is also limited in size, encompassing approximately 4.6 sq km.
Thailand asserts, on the basis of that fact, that the “vicinity [of t he Temple] on Cambodian
territory” (second paragraph of the dispositif of the 1962 Judgment) must be limited solely to the
195
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 198563, para. 17; emphasis
added by Cambodia.
19Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 38, para. 75; emphasis
added by Cambodia.
19Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 563, para. 17. - 66 -
strict precincts of the Temple. However, in an area as limited in size as this, the “vicinity” can
certainly coincide with the confi nes of that area, for they are never very far from one another.
Thailand likewise notes that Cambodia often used the expression “parcelle de territoire” [“portion
of territory”] during the initial proceedings between 1959 and 1962 198. Not only would it be
pointless to look once again at all the possible meanings that could be attributed to this expression,
but logic dictates that the disputed area is indeed a “portion of territory” in the eyes of a State with
a total area of more than 180,000 sq km.
4.73. Whether as a result of the irrelevance of the limited nature of the disputed area or the
irrelevance of the distinction between territorial disputes and frontier disputes, there would appear
to be nothing preventing the Court from interpreting the dispute before it in a manner consistent
with its established case law.
(d) Thailand’s establishment of a unilateral frontier following the 1962 Judgment
4.74. There appears, moreover, to be a remarkable contradiction in the Thai argument. Thus
Thailand asserts, on the one hand, that no frontier resulted from the 1962 Judgment, but also, on the
other hand, that this absence of a recognized frontier allows it to establish one unilaterally. But this
80 argument varies, sometimes appearing to admit the possibility of a sort of “nomadic frontier”, a
concept rejected by international law and by the Court, which has always favoured stable and
precise frontiers . As regards the barbed wire erected following the 1962 Judgment, Thailand
asserts that “the barbed -wire fence was intended to show the extent of the area over which the 200
Court declared Cambodia had sovereignty and not a boundary on which the Court had decided” .
Thailand thus seeks, by that assertion, to give credence to the notion that there is no existing
201
frontier between the two States, a stance that recalls a previous dispute before the Court . That is
to make nonsense of the difference between the absence of a frontier and a frontier explicitly
recognized as the basis for the dispositifof the 1962 Judgment, without the recognition of which no
solution would have been possible. Moreover, Thailand itself repeatedly recognized the existence
of a front202 in the Preah Vihear region during the proceedings before the Court between 1959
and 1962 .
4.75. However, Thailand does not appear sure of that argument, since203 does recognize that
it has established a frontier and done so in a unilateral manner . What it presents as the line
behind which it withdrew its troops after 1962 “in accordance with” the Judgment of the Court
rapidly becomes a frontier, since it considers that the territory beyond the barbed wire is its own.
Thus Thailand, by supposedly complying with the second paragraph of the dispositif of the
Judgment, has in reality established a unilateral f rontier, since its recent claims following the
incidents observed since 2007 show that it considers its territorial integrity to be violated beyond
that point. Thus, as regards the inclusion of the Temple on UNESCO’s World Heritage List, it
indicates that this includes “a significant portion of Thai territory” or “areas of Thai territory” 204.
19Thai Observations, p.91, paras. 3.24-3.25.
19See para. 4.21, infra (sic).
200
Thai Observations, p.185, para. 4.105.
20This was one of the main arguments used by Libya in its case against Chad ( Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994 , p. 13, para. 17 (point 1 of Libya’s submissions).
20Thailand says so itself in its Observations, citing aextract from the oral argument of one of its counsel
(Henri Rolin) in 1962, in which he states that the frontier, “aside from Phra Viharn, has for the pastyears never
given rise to any difficulty”(Thai Observations, p.76, para. 2.78).
203
Ibid., particularly pp. 7-8, para. 1.14.
204
Ibid., p. 11, para. 1.21. - 67 -
And yet, this is indeed the area in question. Thus Thailand does indeed understand the
1962 Judgment as establishing a “frontier”, even if it does not agree with Cambodia on the position
of that frontier. And Thailand certainly did not regard the second paragraph as being of secondary
importance — contrary to its assertions — given that the signs erected subsequently, to which it
refers, show that to be the case 205. At the very least, Thailand has indeed interpreted the dispositif
of the 1962 Judgment in a specific sense.
4.76. Not only did Thailand indeed understand the 1962 Judgment as establishing a frontier
in the region of the Temple, it decided, being unhappy w ith the frontier implied by the Judgment,
81 that it would unilaterally establish that frontier, going against the grounds of the Judgment. So,
having accepted the 1962 Judgment by means of a letter dated 6 July 1962 — undeniably tinged
with scepticism — to the Secretary-General of the United Nations, Thailand immediately marked
out the line in question in an extremely restrictive manner by laying down barbed wire 20. Quite
207
apart from the constant protests by Cambodia, which has never accepted that interpretation , it is
astonishing that, in the modern age, with international relations already having evolved to the point
where States were subject to mutually agreed and peaceful rules, Thailand did not consider it
strange to be unilaterally establishing a frontier, without dialogue, or a proposal of dialogue, with
the neighbour directly involved in the dispute. Unless this stemmed from the bizarre justification
of wanting to implement the 1962 Judgment immediately? Thus Thailand has no hesitation in
asserting i n this regard: “And although Cambodia expressed reservations, unilateral
implementation appeared not only as more realistic but also better than delayed implementation.” 208
4.77. If one wished to summarize Thailand’s understanding of the 1962 Judgment, one could
do so as follows: according to Thailand, it was able to establish a frontier unilaterally because the
Court did not recognize an “international” frontier (and that while initially asserting that the barbed
wire did not constitute a frontier). That amounts to an admission that there was no frontier at all,
either before or after the 1962 Judgment. The notion that there was no frontier is thus a reading of
the Judgment that entirely disregards the Court’s reasoning and even runs counter to it. What is
more, even in the absence of a frontier, nothing allowed Thailand to establish one unilaterally.
Finally, the unilateral frontier established by Thailand after 1962 has fluctuated according to its
claims, and has not remained in the same place over time . 209
(e) Thailand’s confusion between the delimitation and demarcation of the frontier
4.78. How can Thailand seek to impose its own unilateral interpretation of the
1962 Judgment with the aid of a map — unknown to Cambodia until recently 210 — showing
Cambodian territory as being limited strictly to the precincts of the Temple , despite having
accepted an agreement dated 14 June 2000 (i.e., the MoU) which is based on the legal instruments
that give rise to the Annex I map and which takes the form of a simple agreement on the “survey
82 and demarcation” of the frontier? The lack of coherence in Thailand’s attitude is manifest here.
205
Ibid., pp. 7-8, para. 1.14.
20That line is between 20 and 100 metres from the edge of the Temple, as Thailand recognizes. Thai
Observations, pp.138-139, para. 4.35, footnote259. See paras. 2.34 and 2.35, supra.
207
Paras. 2.26-2.65.
20Thai Observations, pp.144-145, para. 4.41.
20See paras. 2.34-2.37 and paras.2.87-2.89, supra.
210
See Map L7017, paras.2.87-2.89, supra. - 68 -
4.79. In this respect, Thailand repeatedly confuses delimitation of the frontier with its
demarcation. On several occasions, it has used the two expressions interchangeably (or
simultaneously) in support of the notion that the dispute concerns both the delimitation and the
demarcation of the frontier between the two States. That is not the case at all. Thus, Thailand
asserts, for e xample: “Rather than treating the area as one in which the boundary has to be
determined, as it did in the MoU, Camb211a now wants to treat the area as if it had already been
delimited by the Court in 1962.” Two errors have crept into this assertion: f irstly, Cambodia
asserts not that the Court delimited the frontier in 1962, but that it recognized a pre-existing frontier
line between the Parties; and secondly, the MoU does not seek to “determine” the frontier, merely
to make it clear by demarcating it and marking it out. There are many examples of such confusion,
notably where Thailand asserts that the 1962 Judgment “created a situation to be taken into account
in the delimitation and demarcation process” 21, that the delimitation and demarcation of the
213
frontier “can only have a salutary effect upon the relations of the Parties in border area” , or that
“Cambodia recognized that the promontory of Phra Viharn was part of the area to be delimited” . 214
The delimitation is effective and was recognized as bein g binding on the Parties by the
1962 Judgment. As for demarcation, that is a process initiated by means of the MoU which will
hopefully be able to continue following the interpretation by the Court.
4.80. Another of Thailand’s arguments concerns the abse 215 nce of any reference to the
1962 Judgment — and thus the Annex I map — in the MoU . Besides the fact that this argument
involves recognition that a delimitation process has already been carried out, it ignores several
significant aspects. Firstly, Article I of the MoU cites the instruments on which that agreement is
to be based for the purposes of effecting the demarcation. It is clear that those instruments are
entirely identical to those that the Court took into account when it recognized the line on t he
Annex I map as the frontier between the two States. It would therefore seem difficult to derive
different legal conclusions from those instruments.
4.81. Events subsequent to the signing of the MoU in 2000 reinforce the sense that Thailand
has in no way given the impression of being involved in a process of delimitation of the frontier.
83 Thus Thailand’s protests prior to 2007 concerning the building work and settlements in the
disputed area referred solely, on the basis of Article V of the MoU, to the protection of the
216 217
environment, not to any violation of its sovereign territory , as Thailand itself acknowledges .
4.82. It follows that the MoU of 14 June 2000 can in no way be regarded as an agreement
concerning the delimitation of the frontier between the two States, since that frontier had already
been delimited and the Court had recognized the validity of that frontier. Moreover, the very name
makes it perfectly clear that the agreement acts in support of other instruments, being simply a
means of i mplementation for the demarcation of a frontier that has already been delimited.
Consequently, contrary to Thailand’s claims, there can be no confusion between this Application
for interpretation and the MoU. Thus Thailand appears to suggest that the Application serves only
to clarify what exactly the MoU is supposed to do, which would render the Application pointless . 218
211
Thai Observations, p.11, para. 1.22.
212
Ibid., p. 188, para. 4.110; emphasis added by Cambodia.
213Ibid.
214
Ibid., p. 190, para. 4.114; emphasis added by Cambodia. See also pp. 229-230, para.5.45.
215
Ibid., particularly pp.10-11, para.1.20, and p.190, para. 4.112.
216See paras. 2.78-2.81, supra.
217
Thai Observations, p.245, para. 5.65.
218
Ibid., pp. 227 et seq., paras. 5.42 et seq. - 69 -
To this end, Thailand has added a final chapter to its Observations 219, which, in Cambodia’s view,
serves absolutely no purpose. Thailand is seeking to show the apparent impossibility of
transposing the line of the Annex I map on the ground. This question is ultra petita, since the
Application for interpretation submitted by Cambodia concerns the correct reading of the dispositif
in the light of the essential grounds of the 1962 Judgment — in other words, in light of the Annex I
map as the boundarybetween the twoParties —so as to ascertain the extent of its territory. This in
no way concerns the transposition of the line or its demarcat ion. That aspect could be addressed
later by the Parties once the Court has interpreted the 1962 Judgment, but does not form part of this
Application. It is also clear to Cambodia that the frontier to which the MoU relates extends far
beyond the disputed area, but that the Court is being asked to rule solely on the territory in the
disputed area.
84 4.83. The issue, then, is not that of the transposition of the line of the Annex I map on the
ground, but rather the recognition of that line as the delimited frontier between the twoStates. The
expert report commissioned by Thailand changes nothing in that respect, since it is clear, in any
case, that no expert report can reconcile in that way the map unilaterally drawn up by Thailand and
the line on the Annex I map recognized by the Court in 1962.
(f) Thailand’s obligation to withdraw is a continuingone
4.84. Thailand has criticized the question posed by Cambodia on the merits, basing its
position, in particular, on the absence of a difference of opinion between the Parties regarding the
obligation to withdraw under the second paragraph of the dispositif. According to Thailand, “it can
hardly be argued that there is any dispute between them on this point” 22. Cambodia relies on the
consistent case law of the Court — as recalled, moreover, in this Response— regarding the various
ways, other than direct diplomatic exchanges, that a dispute can manifest itself in questions of
interpretation. What is even more remarkable is that Thailand has not, itself, managed to determine
whether or not the obligation is a continuing one. In paragraph 4.88 it employs a simple
assumption for the purposes of its argument. In paragraph 5.50, however, it criticizes that
assumption as an incorrect interpretation of the Judgment , while in paragraph 5.51 it states that it
has duly withdrawn its troops “ thereby satisfying its obligation under the second paragraph of the
dispositif” (emphasis added by Cambodia). That appears to be a laborious and convoluted way of
saying that Thailand does not regard its obligation as a continuing obligation. It would have been
simpler for Thailand to have admitted that expressly.
4.85. Thailand then embarks, in paragraphs 5.54 to 5.56 of its Observations, on the
development of a somewhat similar argument as regards the theory of State responsibility.
Cambodia does not consider it necessary to respond to those arguments in an exhaustive manner.
The majority of them consist in a reiteration of Thailand’s claim that the obligation to withdraw
(second paragraph of the dispositif) is an instantaneous obligation, not a continuing one. Cambodia
is not in agreement on that point; hence a dispute exists on that issue. As regards the remainder,
those arguments are merely a manifestation of Thailand’s reluctance to make the primary
distinction between interpretation and compliance (or between interpretation and execution).
Those distinctions have already been debated at length in this Response. It is quite clear that the
85 violation of an international ob ligation will have consequences in terms of State responsibility.
That is elementary. Moreover, a State can violate an international obligation unintentionally or
inadvertently, for example when a State makes a mistake — that is to say, when it adopts an
incorrect interpretation of the nature, consequences or scope of its international obligations. That is
the raison d’être of the international dispute resolution system, and the International Court of
219
Ibid., Chap. VI, pp. 257-279.
220Thai Observations, p.175, para. 4.88. - 70 -
Justice in particular. Consequently, the circumstances surrounding a violation are immaterial, since
it remains a violation. It was for that reason that the International Law Commission deliberately
decided to remove the concepts of culpa and dolus from its Draft Articles on State Responsibility.
However, this elementary analysis does not alter the fact that, even if a State may have violated an
international obligation as a result of its incorrect interpretation, the incorrect interpretation and the
violation (i.e., the incorrect implementation) are diffe rent things. Moreover, having the correct
interpretation of a disputed obligation affirmed in a binding manner must be the most effective
means of averting any future violations. That is the situation in this case. Cambodia could not
have been clearer as regards its objectives in these proceedings, namely to obtain an authoritative
interpretation by the Court regarding the meaning and scope of the obligations stemming from the
1962 Judgment. Issues relating to the violation of those obligations over tim e (whether in the past,
present or future) and the potential consequences of any violation in terms of State responsibility
are different issues and should be addressed on another occasion and by different means.
4.86. A similar view can be taken of Thailand’s somewhat contemptuous claim that the
obligation to withdraw set out in the second paragraph of the dispositif did not have “perpetual life,
with a perpetual guarantee in the form of Article 60 of the Statute” (paragraph5.51).
4.87. Cambodia further contends that Thailand’s argument that the obligation set out in the
second paragraph of the dispositif is instantaneous is without any foundation, since that would have
absurd consequences. According to Thailand, the legal consequence of that element o f the
dispositif of the 1962 Judgment was exhausted as soon as the forces stationed in the area in
question withdrew following the issuance of the Judgment. In Cambodia’s view, there is not a
shadow of a doubt that, at that time, the stationing of military troops and other forces in the Temple
or its vicinity was central to the concerns of the Court. The absurdity of Thailand’s argument is
such that it would mean troops being withdrawn one day and then put back in the same place the
86
following day on the basis that the obligation in the second paragraph had been satisfied the
previous day and, as a result of being so satisfied, had exhausted all of its legal force.
4.88. Cambodia asserts, on the contrary, that there is a close link between the meaning of the
first and second paragraphs of the dispositif, since, from a textual perspective, the word “territory”
is used in each paragraph, and there is also the explicit indication that the second paragraph is a
consequence of the first. Given that the first paragraph undeniably has continuing — and even
perpetual— legal force, the same must be true of the second.
4.89. Consequently, this is a question that relates essentially to the “meaning and scope” of
the Court’s dispositif. To the extent that it is nece ssary to have reference to the second paragraph
and seek an implied meaning of that paragraph that is not set out directly, Cambodia maintains that
that it is necessary to ascertain that meaning in order, in all good faith, to give that paragraph and
the dispositifas a whole the effect intended.
4.90. If one looks at Thailand’s denials in their entirety, as Cambodia stressed in its
Application , Thailand claims that in 1962 the Court somehow recognized Cambodia’s ownership
of a temple situated in Thai ter ritory. For, separating the Temple from the surrounding territory
indicates to the Court that the Temple is not situated in territory under the sovereignty of
Cambodia; instead, the Cambodian Temple is situated in territory under the sovereignty of
Thailand. And yet, the Court clearly indicated in 1962 “that the Temple of Preah Vihear is situated
in territory under the sovereignty of Cambodia” (first paragraph of the dispositif; emphasis added
22Application of Cambodia, para.25. See also CR 2011/13, p. 40, para. 7 (Sorel). - 71 -
by Cambodia) and “finds in consequence . . . 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 ” (second paragraph of the dispositif ; emphasis added by
Cambodia). The terms of that finding are clearly far removed from Thailand’s interpretation of the
1962 Judgment.87 C HAPTER 5
C ONCLUSIONS
5.1. Cambodia feels it necessary to conclude this Response by drawing the Court’s attention,
once again, to the fact that Thailand, while accusing Cambodia of seeking to have the Court take a
decision on an issue that has never been decided previously, continually attempts to push the Court
towards the revision of the 1962 Judgment. Numerous assertions provide confirmation of such
attempts. While the Court certainly cannot allow itself to be led down this path, it is necessary to
look again at the attempts made in this respect.
5.2. Firstly, the length of Thailand’s Observations, including the (107)documents annexed
thereto, corresponds to written arguments at the merits stage of a contentious case before the Court.
Most of those documents are irrelevant in the context of interpretation proceedings under Article 60
of the Statute. They could be helpful, were the Court considering the initial cas e, as it did between
1959 and 1962, but that is manifestly not the case here.
5.3. Then, the manner in which the Observations introduce the question of the ultra petita
rule — doing so in a way that suggests unequivocally that this is (in Thailand’s view ) a relevant
issue as regards the 1962 Judgment — is remarkable. The statement in paragraph 2.52 of the
Observations that “it is indeed one thing to claim that Thailand recognized that the Temple was
situated south of a boundary line and quite another thi ng to allege that it had accepted a line traced
on the basis of contour lines and rivers erroneously depicted on a map” can only be understood as
an assertion that it is inappropriate to rule on the case on that basis and that the Court was therefore
wrong to do so. The implications of that assertion are undeniable. That surprising line of argument
is then supported by the whole of the section beginning with paragraph 3.22, which looks in detail
(and in a laborious manner) at Cambodia’s Observations during the arguments on the merits in the
original case, despite the fact that the arguments of the parties prior to a judgment are then
subsumed in the judgment of the Court. That sequence culminates in the following passage in
paragraph3.32, which deserves to be reproduced in full: “The reference to the ‘Temple area’ could
only be a reference to an area in close proximity to the Temple — the Temple precincts —
otherwise the Court could again be subject to the accusation of deciding ultra petita. It clearly did
not do that.” The word “again” is particularly revealing. This is no more or less than a threat
88 directed at the Court indicating that it is authorized to interpret the Judgment in one way only
(i.e., the way that Thailand interprets it), otherwise i t will (again) exceed its powers under the
Statute (the implication being that it has already done so in 1962). Leaving aside the evident
contempt for the Court, there is simply no way of understanding that line of argument as being
justified by the wordi ng of Article 60, which clearly stipulates that in the event of a dispute as to
the meaning or scope of a judgment, the Court will decide. It falls, therefore, to the Court to
provide an interpretation. This is, therefore, in Thailand’s view, an invitati on to the Court to take
this opportunity to correct the situation by revisiting the decision that it took in 1962.
5.4. Finally, account should be taken, above all, of the highly detailed manner in which the
Observations address the Annex I map and its su pposed technical failings. As Cambodia has
already had cause to emphasize, an entire section of those Observations (spanning 24 pages),
supported by a 48-page technical study that Thailand has conducted specifically for this purpose, is
devoted to the following proposition: “To establish the Annex I map as the authoritative basis for
tracing the boundary line would therefore give rise to further disputes between the Parties, rather
than solve the present one.” 222Even if this political argument were correct (which it is not) and
22Thai Observations, p.286, para. 7.9. - 73 -
pertinent (which it is not), it stems, in any event, from a technical study carried out in 2011, rather
than being based on those available in 1962, when the Court delivered its Judgment, and is
certainly not based on those of the P arties and their experts at the time when the line was first
established and then accepted by the two States. Moreover, this argument concerns almost all of
the Dangrek sector covered by the AnnexI map, that is to say, not only territory in proximity to the
Temple, but also areas that lie some physical distance from the Temple. What is Thailand seeking
to achieve by this demonstration? Its aim is clearly to attack the validity and status of the Annex I
map as a whole. This attempt a posteriori can only be understood as a vain attempt to have the
Court now say that it should never have based its 1962 decision on the map, despite the fact that, as
the Court decided, the two States had already agreed on that frontier. In other words, the objective
is to have the Court revisit its 1962 decision, even if it cannot formally revise its Judgment.
5.5. This is in effect an attempt to have a judgment revised in the light of subsequent events
no less than 40 years after the expiry of the deadline for such proceedings under Article 61 of the
89 Statute. Thailand’s Observations are thus full of references to the same supposed technical
imperfections in the Annex I map that Thailand detailed during the proceedings before the Court
that led to the 1962 Judgment. Thail and has already sought to prove that the Annex I map is
defective and could create problems as regards transposit223 on the ground. That a224ment was
made at the time in Thailand’s written pleadings and oral arguments . Hence this issue was
indeed brought before the Court in 1962.
5.6. The Court, however, simply failed to regard that argument as relevant when reaching its
decision. It did not address, or even mention, that aspect in its Judgment. On the contrary, the
Court attributed binding value to the map. And that was the map used by the Court when
225
recognizing the validity of the frontier between the two States in the sector at issue .
5.7. Thailand now asserts (paragraph 6.24) that the errors in the map at that time were such
that it would be illogical to think that Thailand could have accepted that map as establishing the
frontier. In other words, the Court was wrong to decide that Thailand had accepted that map. And
Thailand is doubtless expecting that the error will now be corrected.
5.8. The following submissions of Cambodia in these proceedings are, by contrast with those
of Thailand, voluntarily and rigorously limited to issues relevant to the interpretation requested
from the Court as defined in the Application.
22I.C.J. Pleadings, Temple of Preah Vihear, “Rejoinder of the Royal Government of Thailand”, Vol. I, p. 597,
para. 112, footnote 1, pp. 597-598 (“the inaccuracy of the physical features, such as contour lines, streams or rivers,
marked on Annex I makes it very difficult to transpose the boundary line to a modern map”), and para. 112. See also the
Thai Observations, paras.210-211.
22CR 1962, p. 213 (which states that Ann. I would render the Cambodian title complete “if . . . the tracing of the
frontier on it had not been based on physi cal data wrongly indicated by the topographical officers Oum and Kerler”;
p. 273 (“material error, the inaccuracy of Annex I”); pp. 274-275 (“As Counsel . . . observed for themselves the terrain
and as they then turned their eyes to Annex I, the frontier marked on Annex I at once raised a very real issue.”);
pp. 284-285
(“Professor Schermerhorn has stated that his report shows that the Annex I map is in error
regarding the mapping of the O Tasem river, which error affects the location of the watershed of Annex I
in a decisive way. And he added [that] ‘In talking about AnnexI map being in error, it is self-evident that
we mean a major error . . . when testing the line on Annex I in relation to the true topographical line, he
concluded that it reflected a major error judged by the technical means of map-making in 1900 to 1910, as
well as by the present methods of photogrammetry.”).
225
Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 14. - 74 -
5.9. On the basis of the facts and arguments set out in its Application for interpretation and in
this Response, Cambodia respectfully asks the Court to adjudge and declare:
90 (i) that the submissions made to the Court by each of the two Parties show, both in the light
of the facts and in themselves, that the Parties are in disagreement regarding the meaning
and scope of the 1962 Judgment;
(ii) that the disputes between the Parties concern both the first and second paragraphs of the
dispositif of the 1962 Judgment, as well as the link between those two paragraphs;
(iii) that the dispute relating to the first paragraph concerns the meaning and scope of the
Court’s use of the term “territory” (“is situated in territory under the sovereignty of
Cambodia”), particularly in connection with the Court’s decisions regarding the legal
status of the AnnexI map as representing the frontier between the twoStates;
(iv) that the dispute relating to the second paragraph concerns the meaning and scope of the
Court’s use of the terms “vicinity ” and “territory” (“at the Temple, or in its vicinity on
Cambodian territory”);
(v) that the dispute relating to the link between the two paragraphs relates to the question of
whether the second paragraph must be read in the light of the first paragraph, or whether
the particular terms employed by the Court in the second paragraph must be read as
seeking to limit the general scope of the firstparagraph;
(vi) that each of those disputes concerns matters decided by the Court with binding force in the
Judgment;
(vii) that on account of the terms used and given the context (specifically, the Court’s decision
concerning the legal status of the Annex I map as representing the frontier between the
two States), the first paragraph of the dispositif must be understood as determining, with
binding force, that all of the disputed area that lies on the Cambodian side of the line on
the Annex I map — including, therefore, the Temple of Preah Vihear itself — is to be
regarded as falling under Cambodian sovereignty;
(viii) that on account of the terms used and given the context (particularly the expression “in
consequence” linking it to the first paragraph), the second paragraph of the dispositif must
91 be understood as representing a particular consequence stemming fromthe decision taken
in the first paragraph, implying that the scope of the second paragraph, both in space and
in time, must be understood in the light of the firstparagraph;
(ix) that on account of the terms used and given the context ( particularly the link with the
first paragraph, of which it is a “consequence”), the second paragraph of the dispositif
must be understood as imposing on Thailand both an explicit obligation to withdraw
immediately to its own territory all military or police forces station ed at the Temple or at
nearby sites at that time and an implicit obligation not to send those forces — or similar
forces — back to the Temple or to nearby sites in the Temple area, which must , on
account of the terms used in the first paragraph of the disp ositif, be regarded as
Cambodia’s sovereign territory.
On that basis, Cambodia respectfully asks the Court, under Article 60 of its Statute, to respond to
the question concerning the interpretation of its Judgment of 15 June 1962 set out in paragraph 45
of the Application for interpretation filedon 28 April 2011, namely: - 75 -
“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 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 region of the Temple
and its vicinity by the line on the Annex I map, on which the Judgment of the Court is
based.”
Mr. H OR Namhong,
Agent of the Kingdom of Cambodia.
___________ LIST OF ANNEXES
(Volume 2)
Annex 1: AKP press release of 18 June 1962, “Press conference by the Thai Prime Minister”.
Annex 2: AKP press release of 19 June 1962, “Declaration by the Royal Government”.
Annex 3: AKP press release of 22 June 1962, “The US press and the case of Preah Vihear”.
Annex 4: Aide memoire on Khmero- Thai relations of 28 November 1962 published by the
Cambodian Ministry of Foreign Affairs.
Annex 5: AKP press release of 2 January 1963, “Declaration by the Royal Government”.
Annex 6: AKP p ress release of 6 January 1963, “Main points of speech given by
Prince Sihanouk, Cambodian Head of State, at Choam Ksan (Preah Vihear,
4 January 1963)”.
Annex 7: AKP press release of 7 January 1963, “The national pilgrimage to Preah Vihear”.
Annex 8: Speech by the Khmer delegation to the Sixth Committee of the United Nations,
published by AKP, 6 January 1964.
Annex 9: Telegram of 10 March 1964 from the US embassy in Phnom Penh to the State
Department, “Transmittal of Maps Showing Cambodian-claimed Boundaries”.
Annex 10: Account of Prince Sihanouk’s comments of 5 January 1965 on “Cambodia’s
relationship with Thailand”.
Annex 11: United Nations transcript of 3 May 1966 of “Letter dated 23 April 1966 from the
Minister for Foreign Affairs of Cambodia addressed t o the President of the Security
Council”.
Annex 12: Letter of 23 April 1966 from the Minister for Foreign Affairs of Cambodia to the
Secretary-General of the United Nations.
Annex 13: Letter of 11 April 1966 sent to the Secretary- General of the United Nati ons by the
Permanent Mission of Cambodia to the United Nations.
Annex 14: Letter of 27 May 1966 sent to the Secretary -General of the United Nations by the
Permanent Mission of Cambodia to the United Nations.
Annex 15: United Nations document of 10 October 1966, “pro memoria” on “The general
situation”.
Annex 16: Note of 26 October 1966 from the Cambodian Ministry of Foreign Affairs to the
Special Representative of the Secretary-General of the United Nations.
Annex 17: Account of Prince Sihanouk’s “Message to the nation” of 9 November 1966.
Annex 18: United Nations document of 2 March 1967, “Memorandum on the actual situation
with regard to the negotiations of the U.N. Mission to Cambodia and Thailand”.
Annex 19: Account of Prince Sihanouk’s press conference of 22 October 1967. - 2 -
Annex 20: Account of Prince Sihanouk’s press conference of 31 July 1967, “Preah Vihear still
claimed by Thailand”.
Annex 21: Corrections made by Prince Sihanouk on 30 September 1967 “concerning
two articles, one in the American press and the other in Singapore’s pro-Peking press,
which have come together to impugn the neutrality of Cambodia and Sihanouk”.
Annex 22: AKP press release of 10 November1967, “Cambodia’s current frontiers”.
Annex 23: Extract from Prince Sihanouk’s address of 21 February 1968, “At Russey, near Preah
Vihear Mountain”.
Annex 24: Decision by the Cambodian Ministry of Worship and Religion of 12 November 1998
concerning the opening of a new pagoda.
Annex 25: Agreed Minutes of the First Meeting of the Thai -Cambodian Joint Commission on
Demarcation for Land Boundary, 30 June-2 July 1999.
Annex 26: Terms of Reference and Master Plan for the Joint Survey and Demarcation of Land
Boundary between the Kingdom of Cambodia and the Kingdom of Thailand.
Annex 27: Aide memoire of 17 May 2007 sent by the Thai Ministry of Foreign Affairs to the
Cambodian Minister for Foreign Affairs and the World Heritage Committee.
Annex 28: Agreed Minutes of the First Discussion of the Cambodian -Thai Technical Officers,
29-30 September 2003.
Annex 29: Agreed Minutes of the Second Discussion of the Cambodian-Thai Technical Officers,
4-5 February 2004.
Annex 30: Agreed Minutes of the Third Discussion of the Cambodian -Thai Technical Officers,
30 June-2 July 2004.
Annex 31: “Joint communiqué” of 18 June 2008 signed by the Governments of C ambodia and
Thailand and UNESCO.
Annex 32: Decision of the 32nd session of the World Heritage Committee in 2008.
Annex 33: MCOT press release of 8 July 2008, “Thai Court rules Thai-Cambodian communiqué
in breach of charter”.
Annex 34: Letter of 19 July 2008 sent to the President of the United Nations General Assembly
by the Permanent Mission of Cambodia to the United Nations.
Annex 35: Letter of 18 July 2008 sent to the President of the United Nations Security Council by
the Permanent Mission of Cambodia to the United Nations.
Annex 36: Letter of 21 July 2008 sent to the President of the United Nations Security Council by
the Permanent Mission of Thailand to the United Nations.
Annex 37: Attestation by the Agent of the Kingdom of Cambodia.
___________
Response of Cambodia