Further Written Explanations of Thailand | INTERNATIONAL COURT OF JUSTICE

Document Number

17292

Document Type

Case

151 - 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)

Date of the Document

Thu, 06/21/2012 - 12:00

Document File

17292.pdf

INTERNATIONAL COURT OF JUSTICE

REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 15 JUNE

1962 IN THE CASE CONCERNING THETEMPLE OF PREAH VIHEAR

(CAMBODIA v. THAILAND)

FURTHER WRITTEN EXPLANATIONS

OF THE KINGDOM OF THAILAND

21 JUNE 2012 TABLE OF CONTENTS

CHAPTER I: INTRODUCTION. . . . . . . . . . . . . . . . . . . . . 1

A. Cambodia’s Response to Thailand’s Written
Observations ................................... 1

1. The Critical Changes in Cambodia’s Position ...... 1
2. Cambodia’s Theory of Inseparable Reasons ........ 6

3. Thailand’sAlleged Resort to Unilateralism ........ 7

B. The Gaps in Cambodia’s Response ................. 11

1. Cambodia Ignores Thailand’sAnalysis of the
1962 Judgment ............................. 11
2. Cambodia Denies the Relevance of anAnalysis

of the Positions of the Parties before the Court
in 1962 ................................... 12
3. Cambodia Ignores Thailand’sAnalysis of

theAnnex I Maps ........................... 15
C. Misrepresentation, Distortion and Irrelevancy in

Cambodia’s Response ........................... 17
D. O utline of These Further Written Explanations .......32

CHAPTER II: THE DIFFERING SUBJECT
MATTERS OFTHE DISPUTES ........ 35

A. T he 1962 Dispute .............................. 36

1. The Dispute Placed before the Court in 1962 ......37
2. TheArguments of the Parties .................. 38

3. The Material before the Court in Light of Which
It Reached Its Decision ....................... 41

4. The Decision of the Court in 1962 .............. 53

B. The 2011 Dispute .............................. 59
C. The Lack of Coincidence between the 1962 and

the 2011 Disputes .............................. 64

iii CHAPTER III: JURISDICTION AND
ADMISSIBILITY ................... 73

A. No Dispute over the Meaning or Scope of the
Judgment ..................................... 76
1. Identifying the Res Judicata ................... 76

(a) Res Judicata Is Circumscribed by the Initial
Dispute and the Petitum ................... 77

(b) Res Judicata, Dispositif and Reasons ......... 82

2. TheAlleged Dispute over the Interpretation of
the Judgment ............................... 94
(a) General Remarks on Cambodia’sApproach

to Demonstrating Its Case .................. 95
(b) The Request to Interpret the Notion of “Territory”

in Paragraphs 1 and 2 of the Dispositif ........99
(c) The Request to Interpret the Notion of
“Vicinity” ............................. 103

(i) Cambodia’s Conflated Claims on
Boundary Delimitation and the Extent

of “Vicinity” ........................ 103
(ii) Cambodia’s Distortions of the Factual
Record ............................. 109

(iii)TheAlleged Dispute over the Meaning and
Scope of the Correlative Obligation to
Withdraw Thai Forces from the Temple and

Its Vicinity on Cambodian Territory
(Paragraph 2 of the Dispositif) .......... 123

(d) TheAlleged Dispute on the Recognition of the
Binding Force of theAnnex I Map as the
Boundary between the Parties in theArea of
the Temple ............................. 124

B. The Dismissal of Cambodia’s New Claims in
the Original Proceedings ........................ 126

iv 1. The Court’s Consideration in 1962 of Cambodia’s
New Claims in Respect of the Boundary and
theAnnex I Map ........................... 129

2. Legal Consequences of the Court’s Dismissal of
Cambodia’s New Claims ..................... 135

(a) Consequences in the Original Proceedings .... 136
(b) Consequences for the Present Proceedings .... 139

CHAPTER IV: THE CLEAR MEANING OFTHE
1962 JUDGMENT ................... 143

A. The Dispositif and Its Clear Meaning .............. 145

B. The Reasoning Which Led the Court to Determine
Sovereignty over the Temple .................... 148

1. The Treaty Text and Why the Court Considered
Other Reasons ............................. 151

2. The Missing Prince in Cambodia’s Response ..... 156
3. The Court’s Further Reasons ................. 157

4. What the Court Said about These Other Reasons .. 159

C. The Temple and Its Precincts as the Exclusive
Subject Matter of the Original Proceedings ......... 161

1. The Court’s Limiting Clause .................. 164
2. Clarity of the Temple’s Location on theAnnex I
Map ..................................... 166

3. The Watershed Line in the 1962 Proceedings ..... 167

(a) The Irrelevance of the True Course of the
Watershed to the Judgment ................ 169

(b) The Relevance of the Parties’Respective
Views about the Watershed ................ 173

4. Cambodia’s Admission That the Conflicting
Versions of theAnnex I Maps and Lines Do Not
Affect the 1962 Judgment .................... 193

D. Cambodia’s Groundless Interpretation ............. 196

v 1. Cambodia’s Oscillating Claim That theAnnex I
Map Line Is Res Judicata .................... 198

2. TheAnnex I Map LineAdds Nothing to the Clear
Meaning of the Dispositif .................... 203

E. The Proper Interpretation of the 1962 Judgment ....209

1. The Territorial Scope of the Dispositif .......210
2. The Instantaneous Character of the Obligation to

Withdraw ................................. 213

CHAPTER V: SOME CONCLUSIONS ............. 219

SUBMISSIONS ................................... 225

LIST OF ANNEXES ................................ 229

vi CHAPTER I

INTRODUCTION

1.1 These Further Written Explanations are filed by the
Kingdom of Thailand in accordance with the decision of the

Court, pursuant to Article 98(4) of the Rules of Court,

communicated to the Parties by letter of 24 November 2011.

They comment on the arguments made by the Kingdom of
Cambodia in its Response of 8 March 2012.

1.2 In these Explanations, Thailand will show that

Cambodia’s Request for interpretation cannot be entertained by
the Court and that even if it were to be entertained, it could not

be sustained. Interpretation under Article 60 of the Statute of

the Court is confined to determining the meaning or scope of the

res judicata of the judgment being interpreted. Cambodia’s

Request, by contrast, seeks an interpretation of what was not
part of the res judicata of the 1962 Judgment. It is an attempt

under the guise of interpretation to have the Court rule on a

present day boundary dispute between the Parties.

A. Cambodia’s Response to Thailand’s Written

Observations

1. TE CRITICAL CHANGES IN CAMBODIA S POSITION

1.3 Cambodia’s submission of 8 March 2012, purportedly a

response to Thailand’s Written Observations of 21 November

1 2011, responds only partially and spasmodically to Thailand’s

arguments, while distorting, misrepresenting or ignoring many
of them. But ultimately it turns out to be a modification of the

essence of Cambodia’s Request for interpretation.

1.4 In its Request for interpretation dated 28 April 2011,

Cambodia focused on paragraph 2 of the dispositif of the 1962

Judgment, and the obligation of Thailand to withdraw its troops

stationed “at the Temple or in its vicinity on Cambodian

territory” which Cambodia claimed resulted from “ the general

and continuing obligation to respect the integrity of the territory
of Cambodia” as defined by the Annex I map line 1. Now, the

focus has shifted. Perhaps lacking confidence in the coherence

of an argument that links paragraph 2 of the dispositif to the

Annex I map line, Cambodia now tries to find a dispute on the

basis of paragraph 1 of the dispositif.

1.5 The dispute between the Parties justifying the Request

for interpretation, Cambodia now claims, relates to both
paragraphs of the dispositif 2, and in particular to paragraph 1

over the meaning of the term “territory” and its link to the

Annex I map line as the boundary between the two Parties.

Thus, Cambodia seeks to link the two paragraphs in its Request

for interpretation, a link that has the objective of asking the

1 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), Application Instituting Proceedings , 28 April 2011, para. 45.
2
Réponse du Royaume du Cambodge, 8 March 2012 (hereafter “Response”),
para. 5.9 (ii).

22011, responds only partially and spasmodically to Thailand’s

arguments, while distorting, misrepresenting or ignoring many
of them. But ultimately it turns out to be a modification of the

essence of Cambodia’s Request for interpretation.

1.4 In its Request for interpretation dated 28 April 2011,

Cambodia focused on paragraph 2 of the dispositif of the 1962

Judgment, and the obligation of Thailand to withdraw its troops

stationed “at the Temple or in its vicinity on Cambodian

territory” which Cambodia claimed resulted from “ the general

and continuing obligation to respect the integrity of the territory
of Cambodia” as defined by the Annex I map line 1. Now, the

focus has shifted. Perhaps lacking confidence in the coherence

of an argument that links paragraph 2 of the dispositif to the

Annex I map line, Cambodia now tries to find a dispute on the

basis of paragraph 1 of the dispositif.

1.5 The dispute between the Parties justifying the Request

for interpretation, Cambodia now claims, relates to both
paragraphs of the dispositif 2, and in particular to paragraph 1

over the meaning of the term “territory” and its link to the

Annex I map line as the boundary between the two Parties.

Thus, Cambodia seeks to link the two paragraphs in its Request

for interpretation, a link that has the objective of asking the

the boundary. In its Response, Cambodia says:

“(…) le Cambodge ne demande aucunement que la Cour
prenne une décision concernant l’intégralité de la
frontière décrite par la carte de l ’annexe I dans la

région des Dangrek. Le Cambodge circonscrit sa 6
demande en interprétation à la zone en litige.”

This is a remarkable modification of the hitherto Cambodian

argument that the Court had accepted the Annex I map line as
the boundary between the two States. Yet Cambodia, struggling

to find support for its new argument on a truncated Annex I map

line (purportedly part of the res judicata of the 1962 Judgment),

points to references by the Court to the Annex I map line but

Cambodia does not exp lain why the Court would have given

status to a partial line . Nor, on the basis of Cambodia’s initial
Request and its arguments on the issue of provisional measures

did the Court understand Cambodia as referring to a truncated

portion of the Annex I map li ne. Referring to what it saw as a

potential dispute between the Parties, the Court said:

“this difference of opinion or views appears to relate,
finally, to 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 frontier between the
two Parties;” 7

6 Ibid., para. 4.50.

7 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, para. 31.

4the Annex I map line was determined by the Court in 1962 to be

the boundary. In its Response, Cambodia says:

“(…) le Cambodge ne demande aucunement que la Cour
prenne une décision concernant l’intégralité de la
frontière décrite par la carte de l ’annexe I dans la

région des Dangrek. Le Cambodge circonscrit sa 6
demande en interprétation à la zone en litige.”

This is a remarkable modification of the hitherto Cambodian

argument that the Court had accepted the Annex I map line as
the boundary between the two States. Yet Cambodia, struggling

to find support for its new argument on a truncated Annex I map

line (purportedly part of the res judicata of the 1962 Judgment),

points to references by the Court to the Annex I map line but

Cambodia does not exp lain why the Court would have given

status to a partial line . Nor, on the basis of Cambodia’s initial
Request and its arguments on the issue of provisional measures

did the Court understand Cambodia as referring to a truncated

portion of the Annex I map li ne. Referring to what it saw as a

potential dispute between the Parties, the Court said:

6Ibid., para. 4.50.

1.9 In order to justify its claim that the Court must look

beyond the dispositif itself in order to interpret the 1962
Judgment, Cambodia develops a novel, and completely

untenable, approach to the question of how reasons for the

decision of the Court are inseparable from the actual decision of

the Court as set out in the dispositif. Cambodia has to do this

because in this case it is not the dispositif but rather the reasons

that Cambodia wants the Court to interpret. From a lengthy,

although irrelevant, disquisition on the importance of reasons to
9
judicial decision -making , Cambodia jumps to the conclusion

that what Cambodia regards as the most important reason for a

decision must ipso facto be inseparable from the decision itself;
10
it is the “ motif décisoire” and automatically part of the res
judicata regardless of whether it is included in the dispositif 1.

Indeed, to give this fiction credibility, Cambodia invokes in aid

the concept of a “dispositif implicite ” . The “ motif décisoire”

becomes a form of “dispositif implicite” and in this way what is

no more than a reason for the decision magically becomes part

of the dispositif.

1.10 But saying something is so does not make it so. A

reason does not become part of the dispositif by calling it a

9
Ibid., paras. 4.5-4.16.
10Ibid., para. 4.23.

11Ibid., para. 4.18.
12
Ibid., para. 4.23.

6 2.C AMBODIA ’ST HEORY OF INSEPARABLE R EASONS

1.9 In order to justify its claim that the Court must look

beyond the dispositif itself in order to interpret the 1962
Judgment, Cambodia develops a novel, and completely

untenable, approach to the question of how reasons for the

decision of the Court are inseparable from the actual decision of

the Court as set out in the dispositif. Cambodia has to do this

because in this case it is not the dispositif but rather the reasons

that Cambodia wants the Court to interpret. From a lengthy,

although irrelevant, disquisition on the importance of reasons to
9
judicial decision -making , Cambodia jumps to the conclusion

that what Cambodia regards as the most important reason for a

Indeed, to give this fiction credibility, Cambodia invokes in aid

the concept of a “dispositif implicite ” . The “ motif décisoire”

becomes a form of “dispositif implicite” and in this way what is

no more than a reason for the decision magically becomes part

of the dispositif.

1.10 But saying something is so does not make it so. A

reason does not become part of the dispositif by calling it a

9
Ibid., paras. 4.5-4.16.
10Ibid., para. 4.23.

11Ibid., para. 4.18.
12
Ibid., para. 4.23. 16
Temple by legal means in the future , and that it erected a
17
barbed-wire fence indicating the limit of the Temple vicinity .

1.12 Yet in all of its fulminations against Thai

“unilateralism”, Cambodia overlooks the essential elements of

what happened following the 1962 Judgment. As Counsel for

Thailand pointed out in the oral hearings on provisional

measures, a State has to implement a judgment of the Court; it
does not have to accept it with enthusiasm 18. And Thailand did

implement the 1962 Judgment. It accepted that the Temple was

on Cambodian territory and it withdrew its troops.

1.13 As Thailand also pointed out in its Written

Observations , accepting the Judgment was a polit ically

unpopular move in Thailand, and in certain quarters still

remains so today. Nevertheless, it is important to put this in

context. It was not a case, as Cambodia claims, of Thailand

providing its own interpretation of the term “vicinity” in the

1962 Judgment and seeking to enforce it through resort to force.

Faced with a decision requiring it to withdraw troops stationed

“at the Temple or in its vicinity on Cambodian territory” the

Thai government had to decide itself the limits of troop

16Ibid., para. 2.32.

17Ibid., paras. 2.22-2.23, 2.39 and 2.42.
18
Request for Interpretation of the Judgment of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (C ambodia v. Thailand) (Cambodia
v. Thailand), Provisional Measures, 31 May 2011, CR 2011/16, p. 23, para.
22 (Mr. James Crawford).
19The Written Observations of the Kingdom of Thailand, 21 November 2011

(hereafter “WO”), para. 1.13.

8 16
Temple by legal means in the future , and that it erected a
17
barbed-wire fence indicating the limit of the Temple vicinity .

1.12 Yet in all of its fulminations against Thai

“unilateralism”, Cambodia overlooks the essential elements of

what happened following the 1962 Judgment. As Counsel for

Thailand pointed out in the oral hearings on provisional

measures, a State has to implement a judgment of the Court; it
does not have to accept it with enthusiasm 1. And Thailand did

implement the 1962 Judgment. It accepted that the Temple was

on Cambodian territory and it withdrew its troops.

1.13 As Thailand also pointed out in its Written

Observations , accepting the Judgment was a polit ically

unpopular move in Thailand, and in certain quarters still

remains so today. Nevertheless, it is important to put this in

context. It was not a case, as Cambodia claims, of Thailand

providing its own interpretation of the term “vicinity” in the

1962 Judgment and seeking to enforce it through resort to force.

Faced with a decision requiring it to withdraw troops stationed

“at the Temple or in its vicinity on Cambodian territory” the

Thai government had to decide itself the limits of troop

16Ibid., para. 2.32.

(hereafter “WO”), para. 1.13. Secretary-General about regaining the Temple in the future by
24
legal means . Cambodian authorities regularly accused
25
Thailand of imaginary attempts to regain the Temple . The

withdrawal of the reservation, as well as the requirement that

Thailand declare that it recognized boundaries claimed by
26
Cambodia , were elevated by Cambodia into imperative

conditions for the resumption of diplomatic relations between
27
the two countries .

1.15 This paranoia about Thai land regaining the Temple

continues to be evident in Cambodia’s suggestion that Thailand

has never really accepted the 1962 Judgment. It draws a

distinction in its Response between Thailand accepting its

obligations under the U nited Nations Charter but not accepting

the Judgment of the Court 28. Yet, this is a distinction without a

difference, a false distinction. Judgments of the Court are

binding by virtue of Article 94 of the U nited Nations Charter.

24Response, paras. 2.39 and 2.57.
25
WO, paras. 4.52-4.55. In the same vein, the declarations made in 1968, on
the occasion of the annual celebration of the Judgment and of Prince
Sihanouk visit to the Temple: (French Embassy in Cambodia, Note to the
Minister of Foreign Affairs of France, 17 June 1968 [Annex 11 to FWE]).
See also Annex 20 to Response, Vol. 2, p. 563.
26
It was one of the constant elements of Cambodia’s foreign policy in the
1960s to demand that States recognize Cambodia’s boundaries; for an
account of States having made these declarations, see United States Embassy
in Bangkok, Airgram to the Department of State, “Cambodian Chronology”,
No. A-363, 3 July 1969 [Annex 12 to FWE].
27
Interview with Prince Sihanouk, in The Christian Science Monitor , 28 July
1967, “Sihanouk jealous of borders”. [Annex 9 to FWE]. See also WO,
para. 4.56.
28
Response, para. 2.33.

10Secretary-General about regaining the Temple in the future by
24
legal means . Cambodian authorities regularly accused
25
Thailand of imaginary attempts to regain the Temple . The

withdrawal of the reservation, as well as the requirement that

Thailand declare that it recognized boundaries claimed by
26
Cambodia , were elevated by Cambodia into imperative

conditions for the resumption of diplomatic relations between
27
the two countries .

1.15 This paranoia about Thai land regaining the Temple

continues to be evident in Cambodia’s suggestion that Thailand

has never really accepted the 1962 Judgment. It draws a

distinction in its Response between Thailand accepting its

obligations under the U nited Nations Charter but not accepting

the Judgment of the Court 28. Yet, this is a distinction without a

difference, a false distinction. Judgments of the Court are

binding by virtue of Article 94 of the U nited Nations Charter.

term “vicinity” means in the context of the Judgment as a

whole, is met with the response that “le terme ‘environs’
possède plusieurs sens” 3. And while Cambodia asserts the

obvious, “[s]eul compte celui que la Cour a souhaité lui

donner,” 32 Cambodia fails to provide any basis whatsoever for

determining what the Court in fact meant. If the meaning of

paragraph 2 of the dispositif to the 1962 Judgment really is an

open question, then it does not suffice for Cambodia to say that

the term vicin ity “possède plusieurs sens” ; Cambodia must

instead be able to say by reference to the Judgment and in light

of the original proceedings, what the Court meant in fact. On

the basis of the Judgment and the pleadings of the Parties,

Thailand has demonstrated the ambit of what the Court decided.
Cambodia has not. Apart from an unsupported affirmation that

the Judgment encompassed the whole area to the south of the

Annex I map line, Cambodia simply has no argument on this

point.

2.C AMBODIA D ENIES THE RELEVANCE OF AN A NALYSIS OF THE

POSITIONS OF THE PARTIES BEFORE THE C OURT IN 1962

1.18 One of the more astonishing aspects of Cambodia’s

Response is the denial that the arguments of the Parties in 1962

30Response, para. 4.55.

31Ibid., para. 4.57.
32
Ibid.

12that analysis, asserting dismissively that Thailand is seeking a
30
revision of the Judgment . Thailand’s treatm ent of what the

term “vicinity” means in the context of the Judgment as a

whole, is met with the response that “le terme ‘environs’
possède plusieurs sens” 31. And while Cambodia asserts the

obvious, “[s]eul compte celui que la Cour a souhaité lui

donner,” 32 Cambodia fails to provide any basis whatsoever for

determining what the Court in fact meant. If the meaning of

paragraph 2 of the dispositif to the 1962 Judgment really is an

open question, then it does not suffice for Cambodia to say that

the term vicin ity “possède plusieurs sens” ; Cambodia must

instead be able to say by reference to the Judgment and in light

of the original proceedings, what the Court meant in fact. On

the basis of the Judgment and the pleadings of the Parties,

Thailand has demonstrated the ambit of what the Court decided.
Cambodia has not. Apart from an unsupported affirmation that

the Judgment encompassed the whole area to the south of the

Annex I map line, Cambodia simply has no argument on this

point.

2.C AMBODIA D ENIES THE R ELEVANCE OF AN A NALYSIS OF THE

P OSITIONS OF THE PARTIES BEFORE THE COURT IN 1962

1.18 One of the more astonishing aspects of Cambodia’s

Response is the denial that the arguments of the Parties in 1962

30Response, para. 4.55.

31Ibid., para. 4.57.
32
Ibid. 36
termes et non pas par référence à des sources externes” it has
37
been essential to do so .

1.20 In fact, Cambodia’s arguments at this point border on the
incoherent. It argues that what has occurred before the

Judgment, in particular the pleadings of the Parties, is not

relevant to its interpretation 38. Then, it also says that facts

occurring after the J udgment are not relevant because invoking

them would alter the meaning and scope of the J udgment 39.

But, if what occurred before the J udgment is ir relevant to its

interpretation and what occurred after the J udgment is also

irrelevant, what is left? A judgment sitting in splendid isolation

with no guidance at all as to its interpretation?

1.21 In short, Cambodia’s argument that the 1962 Judgment
cannot be interpreted by reference to the arguments of the

Parties is completely without merit. An understanding of the

arguments of the Parties is indispensable to understanding what

has been decided and hence to an understanding of the res

judicata. Cambodia’s failure to engage with Thailand’s analysis

of the arguments of the Parties means that Thailand’s
40
arguments rest uncontradicted.

36Ibid., para. 1.12.
37
See paras. 3.7-3.15 below.
38Response, second paragraph 1.11 (p. 6), paras. 1.12 and 4.55- 4.56.

39Ibid., paras. 1.13-1.17 and 2.11-2.15.
40
WO, paras. 2.20-2.65.

14 36
termes et non pas par référence à des sources externes” it has
37
been essential to do so .

1.20 In fact, Cambodia’s arguments at this point border on the
incoherent. It argues that what has occurred before the

Judgment, in particular the pleadings of the Parties, is not

relevant to its interpretation 38. Then, it also says that facts

occurring after the J udgment are not relevant because invoking

them would alter the meaning and scope of the J udgment 39.

But, if what occurred before the J udgment is ir relevant to its

interpretation and what occurred after the J udgment is also

irrelevant, what is left? A judgment sitting in splendid isolation

with no guidance at all as to its interpretation?

1.21 In short, Cambodia’s argument that the 1962 Judgment
cannot be interpreted by reference to the arguments of the

Parties is completely without merit. An understanding of the

arguments of the Parties is indispensable to understanding what

has been decided and hence to an understanding of the res

judicata. Cambodia’s failure to engage with Thailand’s analysis

of the arguments of the Parties means that Thailand’s
40
arguments rest uncontradicted.

36Ibid., para. 1.12.
37
See paras. 3.7-3.15 below.
38Response, second paragraph 1.11 (p. 6), paras. 1.12 and 4.55- 4.56.

39Ibid., paras. 1.13-1.17 and 2.11-2.15.
40
WO, paras. 2.20-2.65. subsequently claims in its Response Thailand had not assented

to?

1.24 In any event this is not a case of a recently found map as
44
Cambodia would like to characterize the matter . T here have

always been different versions of the Annex I map. Hence
Cambodia’s argument about subsequent developments simply

misses the mark. The essential point is that if the dispute in

1962 had been a boundary dispute, the existence of different

versions of the Annex I map would have been a critical and

central issue. The case would have been pleaded differently.

That the existence of different versions of the Annex I map was
not seen as critical is evidenced by Cambodia’s filing in the

present proceedings of a version of the map which has on it a

line that is substantially different from the line on the Annex I

map filed by Cambodia in the original proceedings and referred

to in the 1962 Judgment. Cambodia’s own actions confirm that
the 1962 Judgment was not about a boundary. The point has

nothing to do with developments subsequent to the Judgment.

1.25 Moreover, silence on the Annex I maps also means that

Cambodia has simply not provided any response to the

argument that the impossibility of transposing the line on any of
the versions of the Annex I map onto the ground is a further

indication that the Court was not giving authoritative status to

the map line as a definitive boundary. Cambodia’s implicit

44Ibid., para. 2.15.

16subsequently claims in its Response Thailand had not assented

to?

1.24 In any event this is not a case of a recently found map as
44
Cambodia would like to characterize the matter . T here have

always been different versions of the Annex I map. Hence
Cambodia’s argument about subsequent developments simply

misses the mark. The essential point is that if the dispute in

1962 had been a boundary dispute, the existence of different

versions of the Annex I map would have been a critical and

central issue. The case would have been pleaded differently.

That the existence of different versions of the Annex I map was
not seen as critical is evidenced by Cambodia’s filing in the

present proceedings of a version of the map which has on it a

line that is substantially different from the line on the Annex I

map filed by Cambodia in the original proceedings and referred

to in the 1962 Judgment. Cambodia’s own actions confirm that
the 1962 Judgment was not about a boundary. The point has

nothing to do with developments subsequent to the Judgment.

1.25 Moreover, silence on the Annex I maps also means that

Cambodia has simply not provided any response to the

argument that the impossibility of transposing the line on any of
the versions of the Annex I map onto the ground is a further

indication that the Court was not giving authoritative status to

the map line as a definitive boundary. Cambodia’s implicit

44Ibid., para. 2.15. in the records suggests that this is true. The “ruins of the
Temple” was the way in which France and then Cambodia

described the feature over which sovereignty was disputed.

Equally the claim that the Court’s rejection in 1962 of the

Cambodian requests to give authoritative status to the Annex I
47
map line was si mply a matter of form or procedure is a

proposition of Alice -in-Wonderland-like proportions.

Essentially, Cambodia is saying that the Court found it
unnecessary to include a decision on the Annex I map line in the

dispositif, because it had already decid ed the matter in its

reasons. But, if matters can be decided with the force of res

judicata in the reasons for judgment, what is the point of having

a dispositif at all? Simply to state the Cambodian hypothesis is

to highlight its absurdity. Reasons can be referred to in

interpreting a judgment in order to understand what was decided
in the dispositif , not because they are independently binding

decisions of the Court. Moreover, the reasons also provide an

important opportunity for a court to indicate what it is not

deciding. Cambodia’s proposition that reasons are part of the

res judicata would deny the Court this important tool of the

judicial process.

1.28 Cambodia’s repeated assertions that Thailand is seeking

a revision or reconsideration of the 1962 Judgment 48 ignores

that it was Cambodia that brought this case before the Court.

Thailand is seeking nothing other than a determination that

47Response, para. 3.23.
48
Ibid., paras. 1.23, 4.55-4.56 and 5.1-5.7.

18in the records suggests that this is true. The “ruins of the
Temple” was the way in which France and then Cambodia

described the feature over which sovereignty was disputed.

Equally the claim that the Court’s rejection in 1962 of the

Cambodian requests to give authoritative status to the Annex I
47
map line was si mply a matter of form or procedure is a

proposition of Alice -in-Wonderland-like proportions.

Essentially, Cambodia is saying that the Court found it
unnecessary to include a decision on the Annex I map line in the

dispositif, because it had already decid ed the matter in its

reasons. But, if matters can be decided with the force of res

judicata in the reasons for judgment, what is the point of having

a dispositif at all? Simply to state the Cambodian hypothesis is

to highlight its absurdity. Reasons can be referred to in

interpreting a judgment in order to understand what was decided
in the dispositif , not because they are independently binding

decisions of the Court. Moreover, the reasons also provide an

important opportunity for a court to indicate what it is not

deciding. Cambodia’s proposition that reasons are part of the

res judicata would deny the Court this important tool of the

judicial process.

1.28 Cambodia’s repeated assertions that Thailand is seeking

a revision or reconsideration of the 1962 Judgment 48 ignores

that it was Cambodia that brought this case before the Court.

Thailand is seeking nothing other than a determination that

47Response, para. 3.23.
48
Ibid., paras. 1.23, 4.55-4.56 and 5.1-5.7. that indicated that the Court would not have made a decision

covering more than had been requested because this would

violate the non ultra petita principle. The point in each instance

was that it was not logical to assume that a Court would expand

the scope of its decision in contravention of the non ultra petita

principle. Since the link between the two paragraphs where the

argument is made is obvious and the grammatical structure of

the two arguments is not complicated, the only conclusion to be

drawn is that this was a deliberate misreading of Thailand’s

Written Observations by Cambodia in order to make a rather

distasteful allegation of impropriety.

1.31 Cambodia also seeks to gain rhetorical advantage from

referring to what it describes as the “sec ret map” allegedly
52
disclosed for the first time during UNESCO discussions .

Counsel for Cambodia first mentioned this in the oral

proceedings in the provisional measures application. Referring

to a line that Cambodia had drawn on a map it submitted as
Annex 5 to its Annexes cartographiques, counsel for Cambodia

said that it was a line tabled by Thailand before the World

Heritage Committee in 2007 and that the line had stamped on it

the word “SECRET” 53. Then, in its Response, Cambodia

claimed that in 2007 Thailand published a new map that was

52Ibid., para. 1.3 (iii).

53Request for Interpretation of the Judgment of 15 June1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia
v. Thailand), Provisional Measures, 30 May 2011, CR 2011/13, p. 27,
para. 6 (Sir Franklin Berman).

20that indicated that the Court would not have made a decision

covering more than had been requested because this would

violate the non ultra petita principle. The point in each instance

was that it was not logical to assume that a Court would expand

the scope of its decision in contravention of the non ultra petita

principle. Since the link between the two paragraphs where the

argument is made is obvious and the grammatical structure of

the two arguments is not complicated, the only conclusion to be

drawn is that this was a deliberate misreading of Thailand’s

Written Observations by Cambodia in order to make a rather

distasteful allegation of impropriety.

1.31 Cambodia also seeks to gain rhetorical advantage from

referring to what it describes as the “sec ret map” allegedly
52
disclosed for the first time during UNESCO discussions .

Counsel for Cambodia first mentioned this in the oral

proceedings in the provisional measures application. Referring

to a line that Cambodia had drawn on a map it submitted as
Annex 5 to its Annexes cartographiques, counsel for Cambodia

said that it was a line tabled by Thailand before the World

Heritage Committee in 2007 and that the line had stamped on it

the word “SECRET” 53. Then, in its Response, Cambodia

claimed that in 2007 Thailand published a new map that was

52Ibid., para. 1.3 (iii).

the line that appears on Map Series L 7017 is a line that has

been known to Cambodia since 1962. It follows the barbed-

wire fence of 1962 implementing the Cabinet line. So surprise
and outrage by Cambodia are completely contrived. At one

level, Cambodia’s claim is nothing but a hullabaloo of no

consequence. At another level it is part of the distortion and

misrepresentation by Cambodia that is endemic in this case.

1.34 Equally Cambodia seeks to make much of an alleged

attempt by Thailand to avoid producing the resolution of the

Council of Ministers in 1962 leading to the withdrawal of Thai

troops from the Temple and the erection of the barbed- wire
59 60
fence . But as the record of the resolution shows the formal

recitation of the Council of Ministers resolution that Cambodia
so badly wanted to see simply adds nothing to understanding

what occurred. Producing the record of the resolution of the

Council of Ministers has added no further insight and

Cambodia’s obsession with it has been a pointless diversion.

1.35 Further, while Cambodia is evidently reluctant to

respond to Thailand’s arguments about the Annex I map, it has

58 Minister of Foreign Af fairs of the Kingdom of Thailand, Note to Advisor
to the Royal Government of Cambodia in Charge of State Border Affairs and
Co-Chairman of the Cambodia -Thailand Joint Boundary Commission,
No. 0803/192, 8 March 2005 [Annex 94 to WO].

59Response, paras. 1.3 (iii) and 2.20.
60
See Resolution of the Council of Ministers of the Kingdom of Thailand of
10 July 1962 [Annex 5 to FWE]

22 58
Annex 94 t o Thailand’s Written Observations . Furthermore,

the line that appears on Map Series L 7017 is a line that has

been known to Cambodia since 1962. It follows the barbed-

wire fence of 1962 implementing the Cabinet line. So surprise
and outrage by Cambodia are completely contrived. At one

level, Cambodia’s claim is nothing but a hullabaloo of no

consequence. At another level it is part of the distortion and

misrepresentation by Cambodia that is endemic in this case.

1.34 Equally Cambodia seeks to make much of an alleged

attempt by Thailand to avoid producing the resolution of the

Council of Ministers in 1962 leading to the withdrawal of Thai

troops from the Temple and the erection of the barbed- wire
59 60
fence . But as the record of the resolution shows the formal

recitation of the Council of Ministers resolution that Cambodia
so badly wanted to see simply adds nothing to understanding

what occurred. Producing the record of the resolution of the

Council of Ministers has added no further insight and

Cambodia’s obsession with it has been a pointless diversion.

1.35 Further, while Cambodia is evidently reluctant to

respond to Thailand’s arguments about the Annex I map, it has

58Minister of Foreign Af fairs of the Kingdom of Thailand, Note to Advisor
to the Royal Government of Cambodia in Charge of State Border Affairs and
Co-Chairman of the Cambodia -Thailand Joint Boundary Commission,
No. 0803/192, 8 March 2005 [Annex 94 to WO].

59Response, paras. 1.3 (iii) and 2.20.
60
See Resolution of the Council of Ministers of the Kingdom of Thailand of
10 July 1962 [Annex 5 to FWE] as “the enlargement of ‘Annex I map’”. In fact, what Cambodia

attached to both letters was Map Sheet 3 of Annex 49 to
Thailand’s Counter-Memorial in the original proceedings. This

was a map prepared by the International Training Centre for

Aerial Survey in Delft (I.T.C.) 64 and was an enlarg ement to a

scale of 1:50,000, not of the Annex I map itself but part of the

Annex I map representing an area of 4 cm × 6 cm of the

original. In fact, rather than being the map “used by the

International Court of Justice (ICJ) to adjudicate the conflict”

over the Temple, Map Sheet 3 was hardly referred to in the oral

pleadings of the Parties and not at all by the Court in its
Judgment. It was not a map that was either annexed to the

Judgment or adopted by the Court.

1.38 Moreover, what Cambodia presented to th e Security

Council was not the m ap sheet that was actually filed with the

Court in the 1962 proceedings; it was a map on which

Cambodia had made some additions. The words, “Thailand”

and “Cambodia” and the words “Boundary Line” were added.
And there was a further notation added “Pagoda occupied by

Thai army” with a line to a dot apparently meant to represent the

pagoda. None of these appeared on the original Map Sheet 3,

64 In the original proceedings, Thailand hired experts, Professor W.
Schermerhorn, Director of the Consulting Department and Dean of the
International Training Centre (I.T.C.) and Professor Schermerhorn’s

assistant, Mr. F.E. Ackermann to determine the location of the watershed in
the Kao Phra Viharn area. After an investig ation on the ground, the experts
produced a report entitle“Report by Professor W. Schermerhorn, 1961”,
which was filed as Annex 49 to Counter -Memorial of the Royal Government
of Thailand (hereafter “Thailand’s Counter -Memorial”). Four map sheets
were annexed to this report.

24as “the enlargement of ‘Annex I map’”. In fact, what Cambodia

attached to both letters was Map Sheet 3 of Annex 49 to
Thailand’s Counter-Memorial in the original proceedings. This

was a map prepared by the International Training Centre for

Aerial Survey in Delft (I.T.C.) 64 and was an enlarg ement to a

scale of 1:50,000, not of the Annex I map itself but part of the

Annex I map representing an area of 4 cm × 6 cm of the

original. In fact, rather than being the map “used by the

International Court of Justice (ICJ) to adjudicate the conflict”

over the Temple, Map Sheet 3 was hardly referred to in the oral

pleadings of the Parties and not at all by the Court in its
Judgment. It was not a map that was either annexed to the

Judgment or adopted by the Court.

1.38 Moreover, what Cambodia presented to th e Security

Council was not the m ap sheet that was actually filed with the

Court in the 1962 proceedings; it was a map on which

Cambodia had made some additions. The words, “Thailand”

and “Cambodia” and the words “Boundary Line” were added.
And there was a further notation added “Pagoda occupied by

Thai army” with a line to a dot apparently meant to represent the

pagoda. None of these appeared on the original Map Sheet 3,

never “adopted” by the Court in 1962.

1.40 Map Sheet 3 reappears in Cambo dia’s Response on the

page immediately preceding page 24. But perhaps chastened by

Thailand drawing attention in its Written Observations to
Cambodia’s corruption of the map Cambodia modifies Map

Sheet 3 once more. Gone is the reference to the map as hav ing

been adopted by the Court, gone is the reference to the

“International Boundary Line”, the symbol for the Temple is

reduced to its original size, and the map is described as Map

Sheet 3 from Annex 49. The map, Cambodia says, is “ tirée du
contre-mémoire thaï landais dans l’affaire principale ”, and

“[c]ette carte avait été préparée par l'expert thaïlandais” .69

1.41 But, what Cambodia provides in its Response is still not

Map Sheet 3 as it was presented to the Court in 1962 in Annex
49. It is still a doc tored version of that map. The words

“Phnum Trap” still appear on the map, but this time spelt

“Phnom Traop”. The word “Pagoda”, this time spelt “Pagode”,

and the spot apparently marking the pagoda are still there. None

of these appeared in the original.

68Request for Interpretation of the Judgment of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v . Thailand) (Cambodia
v. Thailand), Application Instituting Proceedings , 28 April 2011, para. 5 (2).

69Response, para. 2.36.

26Cour” as Cambodia would have this Court believe 68and it was

never “adopted” by the Court in 1962.

1.40 Map Sheet 3 reappears in Cambo dia’s Response on the

page immediately preceding page 24. But perhaps chastened by

Thailand drawing attention in its Written Observations to
Cambodia’s corruption of the map Cambodia modifies Map

Sheet 3 once more. Gone is the reference to the map as hav ing

been adopted by the Court, gone is the reference to the

“International Boundary Line”, the symbol for the Temple is

reduced to its original size, and the map is described as Map

Sheet 3 from Annex 49. The map, Cambodia says, is “ tirée du
contre-mémoire thaï landais dans l’affaire principale ”, and

“[c]ette carte avait été préparée par l'expert thaïlandais” .69

1.41 But, what Cambodia provides in its Response is still not

Map Sheet 3 as it was presented to the Court in 1962 in Annex
49. It is still a doc tored version of that map. The words

“Phnum Trap” still appear on the map, but this time spelt

“Phnom Traop”. The word “Pagoda”, this time spelt “Pagode”,

and the spot apparently marking the pagoda are still there. None

of these appeared in the original.

69Response, para. 2.36. 1.44 Such cartographic manipulation is easily exposed. It
demonstrates the lengths to which Cambodia has to go in its

attempt to portray the 1962 proceedin gs as dealing with

something that they were not.

1.45 This is not the end of Cambodia’s cartographical

deception. On the page immediately preceding page 77 of the

Response Cambodia reproduces a map which purports to

illustrate “une comparaison effectuée par le Dr. Schermerhorn
71
après superposition des deux cartes ” . The Response explains
that the green line on the map represents the Annex I map line

and the red line represents the watershed line, and that the lines

overlap to both the east and west of the Temple. The

Cambodian Response then states,

“Cependant, dans la partie centrale, il y a une zone
délimitée où les deux lignes divergent. Cela correspond
aux 4,6 km qui étaient au centre du litige dans l’affaire
72
initiale et qui demeurent litigieux aujourd’hui.”

The impression is clear. Cambodia has produced a map

purportedly drawn by Professor Schermerhorn showing a 4.6
sq km area in dispute. This, Cambodia claims, was the area in

dispute before the Court in 1962 and it remains the area in

dispute today.

71Response, para. 4.65.
72
Ibid.

281.44 Such cartographic manipulation is easily exposed. It
demonstrates the lengths to which Cambodia has to go in its

attempt to portray the 1962 proceedin gs as dealing with

something that they were not.

1.45 This is not the end of Cambodia’s cartographical

deception. On the page immediately preceding page 77 of the

Response Cambodia reproduces a map which purports to

illustrate “une comparaison effectuée par le Dr. Schermerhorn
71
après superposition des deux cartes ” . The Response explains
that the green line on the map represents the Annex I map line

and the red line represents the watershed line, and that the lines

overlap to both the east and west of the Temple. The

Cambodian Response then states,

The impression is clear. Cambodia has produced a map

purportedly drawn by Professor Schermerhorn showing a 4.6
sq km area in dispute. This, Cambodia claims, was the area in

dispute before the Court in 1962 and it remains the area in

dispute today.

71Response, para. 4.65.
72
Ibid. And although Cambodia may claim that it is just doing what

Professor Schermerhorn said could be done, that also would not

be true. Certainly Cambodia has taken Map Sheet 3 and

superimposed it over Map Sheet 4. But, in doing so Cambodia
has ignored the registration points on Map Sheet 3 which were

to be aligned with the corners on Map Sheet 4, instead using the

Temple as a common point on each map. And then Cambodia

has added colour and shading to its new map, characteristics of
neither of Professor Schermerhorn’s maps. Minor, harmless

changes Cambodia might claim. B ut they have two important

consequences. First, they give the impression that the 4.6 sq km

area there displayed was what the Court was focusing on, and
second, they move the Annex I map line towards Thailand.

Cambodia has not produced a map that is the result of doing

what Professor Schermerhorn said should be done, and it cannot

claim that this was Professor Schermerhorn’s map.

1.48 So the claim that the map on the page immediately

preceding page 77 of Cambodia’s Response illustrates “ une

comparaison effectuée par le Dr . Schermerhorn après
76
superposition des deux cartes ” is simply untrue. It is a
corruption of what Professor Schermerhorn said could be done

and it is used by Cambodia to do something that Professor

Schermerhorn did not do. Professor Schermerhorn did not draw

the attention of the Court to a zone created by the overlap of the
Annex I map line and the watershed line. He did not identify a

76Response, para. 4.65.

30And although Cambodia may claim that it is just doing what

Professor Schermerhorn said could be done, that also would not

be true. Certainly Cambodia has taken Map Sheet 3 and

superimposed it over Map Sheet 4. But, in doing so Cambodia
has ignored the registration points on Map Sheet 3 which were

to be aligned with the corners on Map Sheet 4, instead using the

Temple as a common point on each map. And then Cambodia

has added colour and shading to its new map, characteristics of
neither of Professor Schermerhorn’s maps. Minor, harmless

changes Cambodia might claim. B ut they have two important

consequences. First, they give the impression that the 4.6 sq km

area there displayed was what the Court was focusing on, and
second, they move the Annex I map line towards Thailand.

Cambodia has not produced a map that is the result of doing

what Professor Schermerhorn said should be done, and it cannot

claim that this was Professor Schermerhorn’s map.

1.48 So the claim that the map on the page immediately

preceding page 77 of Cambodia’s Response illustrates “ une

comparaison effectuée par le Dr . Schermerhorn après
76
superposition des deux cartes ” is simply untrue. It is a
corruption of what Professor Schermerhorn said could be done

and it is used by Cambodia to do something that Professor

Schermerhorn did not do. Professor Schermerhorn did not draw

the attention of the Court to a zone created by the overlap of the
Annex I map line and the watershed line. He did not identify a

76Response, para. 4.65. D. Outline of These Further Written Explanations

1.50 In Chapter II, Thailand will show that the subject matter

of the dispute in 1962 is different from the subject matter of the

dispute that is the basis for Cambodia’s Request for

interpretation. In 1962 the dispute was about sovereignty over
the Temple and the ground on which it stood – the Temple area.

The dispute that Cambodia brought to the Court in 2011 under

the guise of interpretation is about the boundary between the
Parties and the status of the Annex I map line, which Cambodia

claims to be the boundary. The fact that the subject matters of

the two disputes differ means that there is no question of
interpretation for the Court.

1.51 In Chapter III , Thailand will respond to Cambodia’s

arguments in support of the Court having jurisdiction to
interpret the 1962 Judgment. Thailand will show that there is no

dispute over the meaning or scope of the Judgment and that

Cambodia has confused the reasons for the Judgment and what
has been decided with the force of res judicata. The request

made to the Court to determine that the Annex I map line is the

boundary between the Parties cannot be brought within the

framework of an Article 60 interpretation. The Parties are in
dispute over the location of the boundary between them, but that

dispute does not arise out of the 1962 Judgment a nd cannot be

resolved through an interpretation of what the Court actually
decided in that Judgment.

32 D. Outline of These Further Written Explanations

1.50 In Chapter II, Thailand will show that the subject matter

of the dispute in 1962 is different from the subject matter of the

dispute that is the basis for Cambodia’s Request for

interpretation. In 1962 the dispute was about sovereignty over
the Temple and the ground on which it stood – the Temple area.

The dispute that Cambodia brought to the Court in 2011 under

the guise of interpretation is about the boundary between the
Parties and the status of the Annex I map line, which Cambodia

claims to be the boundary. The fact that the subject matters of

the two disputes differ means that there is no question of
interpretation for the Court.

1.51 In Chapter III , Thailand will respond to Cambodia’s

arguments in support of the Court having jurisdiction to
interpret the 1962 Judgment. Thailand will show that there is no

dispute over the meaning or scope of the Judgment and that

Cambodia has confused the reasons for the Judgment and what
has been decided with the force of res judicata. The request

made to the Court to determine that the Annex I map line is the

boundary between the Parties cannot be brought within the

framework of an Article 60 interpretation. The Parties are in
dispute over the location of the boundary between them, but that

dispute does not arise out of the 1962 Judgment a nd cannot be

resolved through an interpretation of what the Court actually
decided in that Judgment.34 CHAPTER II

THE DIFFERING SUBJECT MATTERS OF THE

DISPUTES

2.1 The essence of Cambodia’s position is that the Court

should interpret the 1962 Judgment to mean that the Court then
was making a definitive determination that the Annex I map line

is the boundary between the Parties 78. But whether it can obtain

such an interpretation depends initially on whether the question

put is in fact a question of interpretation of the 1962 Judgment.

In other words, the subject matter of the Request for

interpretation has to be within the bounds of the subject matter
of the dispute that resulted in the Judgment that Cambodia now

seeks to have interpreted.

2.2 However, an analysis of the subject matter of the dispute

in 1962 and the subject matter of the dispute that Cambodia has
now brought before the Court by means of a request for

interpretation shows that they are not in fact the same.

Cambodia is seeking to use the 1962 decision as a vehicle for

achieving a determin ation on a quite different matter. On that

basis alone the Cambodian Request does not meet the

requirements of Article 60 for an interpretation by the Court.

78Request for Interpretation of the Judgment of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v . Thailand) (Cambodia
v. Thailand), Application Instit uting Proceedings , 28 April 2011, para. 45.
See also Response, para. 5.9.

35 A. The 1962 Dispute

2.3 In its Written Observations of 21 November 2011,

Thailand reviewed the origins of the dispute before the Court in

1962, the pleadings of the Parties and what the Court decided.

From that review the nature and subject matter of the dispute

became clear. It is not proposed to repeat what was said in

those Written Observations, but rather to focus on the key
elements of that analysis in order to highlight what was before

the Court and what the Court actually decided.

2.4 Cambodia has failed to respond to Thailand’s analysis of

the 1962 dispute, preferring to take refuge behind a claim of

irrelevance, according to which nothing in the claims made by

the Parties in 1962 or their arguments in support of those claims
can be taken into account in order to understand what the Court

decided 79. The result of Cambodia’s silence is that it never

presents a clear picture of what the 1962 case was about, but

leaves a blurred and misleading impression that whatever else

the case was about, it was in reality about the boundary between

the two countries. But Cambodia does nothing to substant iate

this. All it does is to quote selectively extracts from the decision
of the Court isolating them from the broader context of the

decision and the subject matter of the dispute as set out in the

pleadings of the Parties and on which the decision is grounded.

79
Response, second paragraph 1.11 (p.6) and para. 1.12.

36 A. The 1962 Dispute