Written Observations of Thailand | INTERNATIONAL COURT OF JUSTICE

Document Number

17284

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

Mon, 11/21/2011 - 12:00

Document File

17284.pdf

INTERNATIONAL COURT OF JUSTICE

REQUEST FOR INTERPRETATION OFTHE JUDGMENT OF 15 JUNE
1962 IN THE CASE CONCERNING THE TEMPLE OF PREAH VIHEAR
(CAMBODIAv.THAILAND)

(CAMBODIAv. THAILAND)

WRITTEN OBSERVATIONS

OF THE KINGDOM OF THAILAND

21 NOVEMBER 2011 TABLE OF CONTENTS

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

A. Procedural Matters ............................... 1

B. The 1962 Judgment and Cambodia’s Request for
Interpretation ................................... 2
C. Thailand’s Implementation of the 1962 Judgment ....... 6

D. Cambodia’s Calling into Question of the Status Quo ... 10

E. The Incidents at the Border ....................... 13

F. Outline of These Written Observations .............. 15

CHAPTER II: THE DISPUTE IN THE ORIGINAL

PROCEEDINGS (1959-1962) .......... 19
A. The Scope of the Dispute in the Preliminary
Objections Phase ............................... 19

1. Historical Background ......................... 19

2. The Question in Cambodia’s 1959Application ...... 21

3. The Treatment of the Question in the Preliminary
Objections Phase .............................. 23
B. The Scope of the Dispute in the Pleadings of

the Parties on the Merits ......................... 28
1. The Subject Matter of the Initial Dispute Was
Restricted to Sovereignty over the Temple of

Phra Viharn .................................. 29
(a) The Existence of Concurrent Claims of

Sovereignty over the Temple ................. 31
(b) The Territorial Scope of the Dispute
Was Circumscribed to the Ground on Which

the Temple Stood .......................... 40
2. The Subject Matter of the Dispute Did Not Include

the Determination of the Boundary ................ 46

iii (a) The Role of theAnnex I Map in Cambodia’s
Argumentation ............................ 46

(b) The Map Line as a Line for Determining the
Location of the Temple ..................... 50
(c) The Parties’Lack of Interest in the Map Line

as a Boundary ............................. 55
3. The Petitum as Defined in theAdmissible

Submissions of the Parties ...................... 61
C. Conclusion .................................... 76

CHAPTER III: THE MEANINGAND SCOPE OF
THE 1962 JUDGMENT .............. 79

A. Introduction ................................... 79

B. The Scope and Content of the Dispositif ............. 81
C. The Narrow Scope of the Dispute as Defined

by the Court ................................... 86
1. The Link with the Judgment of the Court on
Preliminary Objections ......................... 86

2. The Court’s View of the Limited Scope of
the Dispute .................................. 87

3. The Scope and Content of the Dispositif Was
Circumscribed by the Petitum .................... 90

D. The Terms Used by the Court Circumscribed
the Issue in Dispute............................. 95

1. The Meaning of the Term “Temple” in
Operative Paragraph 1 .......................... 96

2. The Meaning of the Phrase “at the Temple, or in
Its Vicinity on Cambodian Territory” in
Operative Paragraph 2 .......................... 97

3. The Meaning of the Term “TempleArea” in
Operative Paragraph 3 ......................... 102

4. The Meaning of the Term “Region” .............. 108

iv E. The Role of theAnnex I Map Line in
the Reasoning of the Court. ...................... 111

F. Conclusion ................................... 118

CHAPTER IV: LACK OF JURISDICTION OF
THE COURTAND INADMISSBILITY
OFTHE REQUEST FOR

INTERPRETATION ................ 119
A. Absence of a Dispute as to the Meaning and Scope
of the Judgment ............................... 123

1. No Dispute on the Meaning and Scope of
the Operative Part of the 1962 Judgment .......... 125

(a) No Dispute on Paragraph 1 of the Dispositif .... 128

(b) No Dispute on Paragraph 2 of the Dispositif .... 131
2. No Dispute over Thailand’s Compliance with

the 1962 Judgment. ........................... 132
(a) The 1962 Documents ...................... 136

(b) Prince Sihanouk’s Pilgrimage to the Temple
on 5 January 1963 and Cambodia’s
Subsequent Satisfaction with Implementation ... 146

(c) The Post-1963 Period: NewArmed Clashes
and Continuing Negotiations for the
Resumption of Diplomatic Relations .......... 152

(d) The Post-1990 Period ...................... 158

(e) InAny Case, Disputes over Implementation
Are outside the Scope ofArticle 60 ........... 164

B. Cambodia’s Disregard for the Principle
of Res Judicata ................................ 166

1. The Object of Cambodia’s Request Does Not
Concern Points Decided with Binding Force
by the Court ................................. 169

2. The Purpose of Cambodia’s Request Is to Revive
a Claim Relating to Delimitation Declared
Inadmissible in 1962 .......................... 179

v (a) The Court Declared Inadmissible Cambodia’s
Claim Relating to Delimitation .............. 180

(b) Cambodia’s Request Reveals a Dispute over
the Delimitation of the Boundary ............ 184
C. Conclusion. .................................. 192

CHAPTER V: CAMBODIA’S MISCONSTRUCTION

OFTHE MEANINGAND SCOPE OF
THE 1962 JUDGMENT ............. 193

A. TheApparent Purport of Cambodia’s Request ....... 193

B. Ignoring the Text of the 1962 Judgment, Cambodia
ErroneouslyAsserts That the Court Determined
That the Boundary Is to Be Traced on the Basis
of theAnnex I Map Line ........................ 195

1. Cambodia’s Request, in Contending That
theAnnex I Map Line Is the Basis on Which
the Boundary Must Be Traced, Fails to Respect
the Court’s Express Refusal in 1962 to Make

Such a Determination ......................... 197
2. Cambodia’s Request Demands That the Court

Today Treat as Res Judicata Other Matters in
Relation to theAnnex I Map Which the 1962
Judgment Did NotAddress atAll ................ 199

(a) Cambodia’sAssertion That the 1962
Judgment Determined the Boundary Not
to Follow the Watershed ................... 200

(b) Cambodia’s Request Ignores That the 1962
Judgment Did NotAddress the Difference
between the Parties as to Whether It Would
Be Practical to Transpose theAnnex I Map
Line onto the Terrain ...................... 210

3. Cambodia Misconceives the Question of
Sovereignty over the Temple as Having

Necessitated a Determination of the Precise
Location of the Boundary ...................... 213

vi (a) Cambodia, Insisting Now That the Original
Proceedings Were for the Purposes of
Constituting a Boundary, Ignores What
the Court in 1962 Had Been Called upon
to Determine ............................. 214

(b) Cambodia’s Portrayal of the Precise Location
of the Boundary as Essential to the 1962

Judgment Is Unconvincing ................. 218
4. Cambodia Ignores the Subsequent Practice of
the Parties Indicating That the Court Had Not

Determined the Precise Location of the Boundary ... 226
(a) The Memorandum of Understanding

of 14 June 2000 .......................... 227
(b) Third States Were Clear That the Boundary
Issue Remained Unsettled by the 1962

Judgment ............................... 230
5. CambodiaAttempts Now to Impute to the
Annex I Map a Purpose for Which the Court

in 1962 Declined to Employ It .................. 231
C. Cambodia Confuses the General and Continuing

Obligation of States to Respect OneAnother’s
Territorial Integrity with the Specific Determination
Reached by the Court in 1962 .................... 233

D. Cambodia’sAllegation That Thailand Failed to
Withdraw in accordance with the 1962 Judgment
Is without Merit ............................... 238

1. Cambodia Fails to Identify the FurtherArea
from Which It Now Contends Thailand Failed
to Withdraw ................................. 240

2. Cambodia Has RepeatedlyAcknowledged That
Thailand Withdrew in accordance with the 1962
Judgment ................................... 246

(a) Cambodia’s ExplicitAcknowledgement in
the GeneralAssembly of Thailand’s
Compliance with the 1962 Judgment .......... 246

(b) The Visit of the Other Prince ................ 247

vii (c) Cambodia’sAllegations in 1966 ............. 249
(d) Cambodia’s Subsequent Prolonged Silence ..... 252

(e) Recent Cambodian Practice ................. 253

E. Conclusion ................................... 255

CHAPTER VI: THE PROBLEMS OF TRANSPOSING

THE LINE ON THEANNEX I MAPTO

THE TERRAIN .................... 257
A. Introduction .................................. 257

B. Defects in theAnnex I Map ...................... 259

1. Deviation of the Boundary Line from
the Watershed ............................... 259
2. The Gap between Lines at the Western End of

theAnnex I Map ............................. 261
3. Positional Errors ............................. 263

4. Topographical Errors.......................... 265

5. Scaling Problems ............................ 266
6. Conclusions as to the Defects in theAnnex I

Map Line ................................... 266
C. The Registration Error and the Revised Version

of the Map ................................... 268
D. Transformation of theAnnex I Map Line to
the Terrain ................................... 273

E. Conclusion ................................... 277

CHAPTER VII:CONCLUSIONS ................... 281

SUBMISSIONS ................................... 287

LIST OF ANNEXES ............................... 291

viii CHAPTER I

INTRODUCTION

A. Procedural Matters

1.1 On 28 April 2011, the Kingdom of Cambodia filed with

the Court, pursuant to Article 60 of the Statute of the Court and

Article 98 of the Rules of Court, an application for the
interpretation of the Judgment of the Court of 15 June 1962 in

the Case Concerning the Temple of Preah Vihear (Cambodia v.

Thailand) 1 (in Thai “Phra Viharn”) and a request for provisional

measures . On the same date the Court informed the Kingdom

of Thailand of the filing of the Request for interpretation

(“Request”) and provided Thai land with originals of the

documents filed by Cambodia.

1.2 On 18 July 2011, the Court issued its Order on
3
Cambodia’s Request for provisional measures .

1.3 On 20 July 2011, the Registra r advised Thailand that,

acting pursuant to Article 98(3) of the Rules of Court, the Court

1
Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962, p. 6.
2
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 and ibid.,
Request for the Indication of Provisional Measures, 28 April 2011.
3 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. 69.

1 had fixed the date of 21 November 2011 for the filing of Written

Observations by Thailand.

1.4 These Written Observations are filed pursuant to that

decision of the Court.

B. The 1962 Judgment and Cambodia’s Request for

Interpretation

4
1.5 In its decision of 15 June 1962 , the Court,

“finds that the Temple of Preah Vihear is situated in
territory under the sovereignty of Cambodia,” [operative

paragraph 1]

“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 Temp le, or in its vicinity on
Cambodian territory;” [operative paragraph 2]

“that Thailand is under an obligation to restore to
Cambodia any objects of the kind specified in

Cambodia's fifth Submission which may, since the date
of the occupation of the Temple by Thailand in 1954,
have been removed from the Temple or the Temple area
by the Thai authorities.” [operative paragraph 3]

1.6 In its Request for interpre tation of the 1962 Judgment,

Cambodia does not state a specific question for interpretation.

4 Case Concerning the Temple of Preah Vihear (Cambodia v . Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports1962, pp. 36-37.

2had fixed the date of 21 November 2011 for the filing of Written

Observations by Thailand.

1.4 These Written Observations are filed pursuant to that

decision of the Court.

B. The 1962 Judgment and Cambodia’s Request for

Interpretation

4
1.5 In its decision of 15 June 1962 , the Court,

“finds that the Temple of Preah Vihear is situated in
territory under the sovereignty of Cambodia,” [operative

paragraph 1]

“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 Temp le, or in its vicinity on
Cambodian territory;” [operative paragraph 2]

“that Thailand is under an obligation to restore to
Cambodia any objects of the kind specified in

1.6 In its Request for interpre tation of the 1962 Judgment,

Cambodia does not state a specific question for interpretation.

4 Case Concerning the Temple of Preah Vihear (Cambodia v . Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports1962, pp. 36-37. Cambodian side of a “frontier recognized by th e Court in its
Judgment” 6.

1.8 This conclusion, or rather assumption of Cambodia, is

central to its specific request to the Court which is to declare

that operative paragraph 2 of the dispositif which required

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 territor y” is a consequence of the

“general and continuing obligation” to respect the integrity of

the territory of Cambodia which Cambodia claims was

delimited “in the area of the Temple and its vicinity” by the line
7
on the Annex I map .

1.9 On the face of it, then, Cambodia is seeking for the
Court to declare that Thailand has a present day obligation by

virtue of operative paragraph 2 of the dispositif to withdraw

from any area on the Cambodian side of the Annex I line. In

reality, what Cambodia wants the Court to do is to declare that

the line on the Annex I map is the boundary between Cambodia

and Thailand.

6Ibid.
7
References to the Annex I map in these Written Observations refer to the
map annexed to Cambodia’s Application to the Court of 15 September 1959
(Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Pleadings, Oral Arguments, Documents, Vol. I, p. 17). References to the
“Annex I line” or the “Annex I map line” are references to the line on that
map. In Chapter VI of these Written Observations the implications of the
fact that there are other versions of the Annex I map will be discussed.

4Cambodian side of a “frontier recognized by th e Court in its
Judgment” 6.

1.8 This conclusion, or rather assumption of Cambodia, is

central to its specific request to the Court which is to declare

that operative paragraph 2 of the dispositif which required

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 territor y” is a consequence of the

“general and continuing obligation” to respect the integrity of

the territory of Cambodia which Cambodia claims was

delimited “in the area of the Temple and its vicinity” by the line
7
on the Annex I map .

1.9 On the face of it, then, Cambodia is seeking for the
Court to declare that Thailand has a present day obligation by

virtue of operative paragraph 2 of the dispositif to withdraw

from any area on the Cambodian side of the Annex I line. In

reality, what Cambodia wants the Court to do is to declare that

the line on the Annex I map is the boundary between Cambodia

and Thailand.

Written Observations it clearly is not.

1.12 As Thailand will point out in these Observations, the

Court does not have jurisdiction to provide the interpretation
that Cambodia requests. There is no dispute between the Parties

over the interpretation of eith er operative paragraph 2 or

operative paragraph 1 and thus a claim for interpretation under

Article 60 of the Statute is not admissible. And, as will equally

be pointed out, the Court made no determination in 1962 of the
sort that Cambodia claims. To the contrary, it expressly

declined to do so. Cambodia’ s present Request for the

determination of a boundary under the guise of interpretation of

the 1962 Judgment must be rejected.

C. Thailand’s Implementation of the 1962 Judgment

1.13 The 1962 Judgment provoked a substantial political

reaction within Thailand. Notwithstanding the obvious difficulty
in doing so, on 3 July 1962, Thailand announced that while

disagreeing with the decision of the Court, it would nevertheless

as a member of the United Nations honour its obligations under
10
the United Nations Charter . This was communicated by Note

to the Secretary-General of th e United Nations on 6 July 1962,
which then was forwarded to all United Nations members,

10The Prime Minister’s Office of Thailand, Communiqué of the
Government, 3 July 1962 [Annex 11]. See also Ministry of Foreign Affairs of
the Kingdom of Thailand, Foreign Affairs Bulletin, Vol. I, No.6, June - July
1962, pp. 128-130 [Annex 36].

6of the 1962 Judgment, which Thailand will demonstrate in these

Written Observations it clearly is not.

1.12 As Thailand will point out in these Observations, the

Court does not have jurisdiction to provide the interpretation
that Cambodia requests. There is no dispute between the Parties

over the interpretation of eith er operative paragraph 2 or

operative paragraph 1 and thus a claim for interpretation under

Article 60 of the Statute is not admissible. And, as will equally

be pointed out, the Court made no determination in 1962 of the
sort that Cambodia claims. To the contrary, it expressly

declined to do so. Cambodia’ s present Request for the

determination of a boundary under the guise of interpretation of

the 1962 Judgment must be rejected.

C. Thailand’s Implementation of the 1962 Judgment

1.13 The 1962 Judgment provoked a substantial political

reaction within Thailand. Notwithstanding the obvious difficulty
in doing so, on 3 July 1962, Thailand announced that while

disagreeing with the decision of the Court, it would nevertheless

as a member of the United Nations honour its obligations under
10
the United Nations Charter . This was communicated by Note

to the Secretary-General of th e United Nations on 6 July 1962,
which then was forwarded to all United Nations members,

facing inward towards the Temple, clearly visible to all

Cambodians at the Temple, a sign reads “ LES ENVIRONS DU
TEMPLE DE PHRA VIHARN NE S’ETENDENT PAS AU DELA

DE CETTE LIMITE” 1.

1.15 Cambodia was well aware of these actions of Thailand.

It objected to the reservation made in Thailand’s Note of 6 July

1962 to the United Nations concerning eventual regaining of the

Temple and took the view that this was itself a failure to comply

with the 1962 Judgment. The barbed-wire fence was considered
by Prince Sihanouk in 1963 to be encroaching on Cambodian

territory but only by just a few metres and not worth

complaining about . 14

1.16 During the period of 1962 to 1966, there were a number

of incidents along the border between Cambodia and Thailand,

including in the Phra Viharn area, reflecting a general

deterioration of relations be tween the two sides. Although
Cambodia complained to the United Nations that Thailand’s

actions constituted a failure to recognize Cambodia’s

sovereignty over the Temple and hence a failure to comply with

the decision of the Court, at no time did Cambodia seise the

Security Council with a compla int of non-compliance pursuant

12
Photograph of the sign erected to comply with the 1962 Judgment
[Annex 40A]. See also para. 4.35 below.
13Photograph of the sign erected to comply with the 1962 Judgment
[Annex 40B].
14
See paras 4.45 and 5.68 below.

8 12
VICINITY OF THE TEMPLE OF PHRA VIHARN” . And
facing inward towards the Temple, clearly visible to all

Cambodians at the Temple, a sign reads “ LES ENVIRONS DU

TEMPLE DE PHRA VIHARN NE S’ETENDENT PAS AU DELA

DE CETTE LIMITE” 1.

1.15 Cambodia was well aware of these actions of Thailand.

It objected to the reservation made in Thailand’s Note of 6 July
1962 to the United Nations concerning eventual regaining of the

Temple and took the view that this was itself a failure to comply

with the 1962 Judgment. The barbed-wire fence was considered

by Prince Sihanouk in 1963 to be encroaching on Cambodian

territory but only by just a few metres and not worth
14
complaining about .

1.16 During the period of 1962 to 1966, there were a number

of incidents along the border between Cambodia and Thailand,

including in the Phra Viharn area, reflecting a general

deterioration of relations be tween the two sides. Although

Cambodia complained to the United Nations that Thailand’s

actions constituted a failure to recognize Cambodia’s

sovereignty over the Temple and hence a failure to comply with
the decision of the Court, at no time did Cambodia seise the

Security Council with a compla int of non-compliance pursuant

1.19 On 14 June 2000, a Memorandum of Understanding

(MoU) 17 was entered into between the Government of the

Kingdom of Thailand and the Government of the Kingdom of

Cambodia on the Survey and Demarcation of Land Boundary,

which provided for a joint process for the survey and

demarcation of the boundary between the two countries
including in the Dangrek sector. There was no question but that

the Parties were in dispute over that boundary and that the MoU

provided for an amicable process to resolve that and other

boundary disputes.

1.20 The MoU was an attempt by the Parties to put the past

behind them. The outstanding boundary issues, including the
boundary in respect of Phra Vi harn, were to be negotiated

within the framework of the Thai-Cambodian Joint Commission

on Demarcation for Land Boundary (JBC). The basic documents

for the Commission were mentioned in the MoU – the 1904 and

the 1907 treaties, and maps resulting from the work of the

boundary commissions and other documents relating to the 1904
18
and 1907 treaties . The 1962 Judgment was not referred to – a
clear indication that it was not relevant for the determination of

17Memorandum 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, 14 June 2000 [Annex 91].
18
Ibid., Article I.

10 D. Cambodia’s Calling into Question of the Status Quo

1.19 On 14 June 2000, a Memorandum of Understanding
17
(MoU) was entered into between the Government of the

Kingdom of Thailand and the Government of the Kingdom of

Cambodia on the Survey and Demarcation of Land Boundary,
which provided for a joint process for the survey and

demarcation of the boundary between the two countries

including in the Dangrek sector. There was no question but that

the Parties were in dispute over that boundary and that the MoU

provided for an amicable process to resolve that and other

boundary disputes.

1.20 The MoU was an attempt by the Parties to put the past

behind them. The outstanding boundary issues, including the

boundary in respect of Phra Vi harn, were to be negotiated

within the framework of the Thai-Cambodian Joint Commission

on Demarcation for Land Boundary (JBC). The basic documents
for the Commission were mentioned in the MoU – the 1904 and

the 1907 treaties, and maps resulting from the work of the

boundary commissions and other documents relating to the 1904
18
and 1907 treaties . The 1962 Judgment was not referred to – a

clear indication that it was not relevant for the determination of

17Memorandum 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, 14 June 2000 [Annex 91].

18Ibid., Article I. the 1962 Judgment has been implemented by Thailand, and

claiming that Thailand is not in compliance with its obligations
under operative paragraph 2 of the dispositif thereby seeking to

construct, artificially, a dispute over the meaning of that

operative paragraph.

1.23 All of this is a form of subterfuge, because what

Cambodia wants is for the Court to determine that the Annex I

line is a boundary. But that is a contemporary dispute and not a
question of interpretation of the 1962 Judgment. So, Cambodia

has to pretend that there is a present day disagreement over

operative paragraph 2.

1.24 Thus, contrary to its claim, it is Cambodia that has upset

the status quo in the area, changing from working

collaboratively to resolve differences over the boundary
between the Parties to seeking to have the area determined to be

subject to the sovereignty of Ca mbodia. And it is attempting to

do this by a request to the Court for the interpretation of the

1962 Judgment. But, as Thailand will demonstrate in these
Written Observations, Cambodia cannot incorporate the

reasoning of the Court into the res judicata of operative

paragraph 1 of the dispositif, under the guise of interpreting
operative paragraph 2, in order to obtain from the Court today a

ruling on precisely what in 1962 the Court refused to rule.

12the 1962 Judgment has been implemented by Thailand, and

claiming that Thailand is not in compliance with its obligations

under operative paragraph 2 of the dispositif thereby seeking to

construct, artificially, a dispute over the meaning of that

operative paragraph.

1.23 All of this is a form of subterfuge, because what

Cambodia wants is for the Court to determine that the Annex I

line is a boundary. But that is a contemporary dispute and not a

question of interpretation of the 1962 Judgment. So, Cambodia
has to pretend that there is a present day disagreement over

operative paragraph 2.

1.24 Thus, contrary to its claim, it is Cambodia that has upset

the status quo in the area, changing from working
collaboratively to resolve differences over the boundary

between the Parties to seeking to have the area determined to be

subject to the sovereignty of Ca mbodia. And it is attempting to

do this by a request to the Court for the interpretation of the
1962 Judgment. But, as Thailand will demonstrate in these

Written Observations, Cambodia cannot incorporate the

reasoning of the Court into the res judicata of operative

paragraph 1 of the dispositif, under the guise of interpreting

operative paragraph 2, in order to obtain from the Court today a
ruling on precisely what in 1962 the Court refused to rule. authorities’ offices and pointed out that Cambodia was obliged

under Article V of the MoU not to “carry out any work resulting

in changes of environment of the frontier zone”.

1.27 Those concerns were reiter ated in a Note sent to
Cambodia on 8 March 2005 22. Concern was also expressed

about the construction and improvement of a road by Cambodia

from Komui Village, Preah Vihe ar Province to Phra Viharn

Temple, which traverses localities subject to Thai sovereignty.

Once again Thailand invoked Article V of the MoU.

1.28 Between November 2007 and April 2008, the JBC

discussed possible provisional arrangements in the Phra Viharn

region, including redeployment of troops, joint de-mining of

heavily mined areas, and addressing the question of the
Cambodian community introduced into the area.

1.29 Notwithstanding these attempts to deal amicably with

the differences between the Parties, in October 2008, February
2009 and February 2011, armed incidents took place in the

region of the Temple. All resu lted from Cambodia’s increased

military and civilian presence in the area and Thailand

responded in self-defence to armed attacks by Cambodian forces

that even extended into undisputed Thai territory.

22Adviser to the Minister of Foreign Affairs and Co-Chairman of the
Thailand-Cambodia Joint Boundary Commission, Note to Adviser 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].

14authorities’ offices and pointed out that Cambodia was obliged

under Article V of the MoU not to “carry out any work resulting

in changes of environment of the frontier zone”.

1.27 Those concerns were reiter ated in a Note sent to

Cambodia on 8 March 2005 22. Concern was also expressed

about the construction and improvement of a road by Cambodia

from Komui Village, Preah Vihe ar Province to Phra Viharn
Temple, which traverses localities subject to Thai sovereignty.

Once again Thailand invoked Article V of the MoU.

1.28 Between November 2007 and April 2008, the JBC
discussed possible provisional arrangements in the Phra Viharn

region, including redeployment of troops, joint de-mining of

heavily mined areas, and addressing the question of the

Cambodian community introduced into the area.

1.29 Notwithstanding these attempts to deal amicably with

the differences between the Parties, in October 2008, February

2009 and February 2011, armed incidents took place in the

region of the Temple. All resu lted from Cambodia’s increased
military and civilian presence in the area and Thailand

responded in self-defence to armed attacks by Cambodian forces

that even extended into undisputed Thai territory.

operative paragraphs confined the issue to the immediate area
surrounding the Temple. The Court rejected an attempt by

Cambodia to transform the matter be fore it in order to obtain a

ruling on the status of the Annex I map and the boundary

between the Parties.

1.33 In Chapter IV, Thailand will demonstrate that the Court

has no jurisdiction to deal with this Request for interpretation;
there is no dispute over the meaning and scope of the Judgment.

The real purpose of Cambodia’s Request is to obtain a ruling on

the boundary between the Parties, and such a claim, in respect of

a matter not sub judice in 1962, under the guise of a request for
interpretation in accordance with Article 60, is inadmissible.

1.34 In Chapter V, in the alternative, if the Court were to find
that it has jurisdiction, Thailand will demonstrate that

Cambodia’s Request misconstr ues the 1962 Judgment. The

Court did not determine a boundary between the Parties, nor did

it grant any status to the A nnex I line. Th e question of
sovereignty over the Temple did not require the Court to make a

determination of the locati on of the boundary between the

Parties and the subsequent practice of the Parties indicates
clearly that the Court did not do so. Cambodia has also

confused the genera l obligation for States to respect the

territorial integrity of each other with the specific determination

of the Court in the 1962 Judgment. In addition, Cambodia fails
to identify any basis in the 1962 Judgment for its claim that

16Temple. The language used by the Court in each of its three

operative paragraphs confined the issue to the immediate area
surrounding the Temple. The Court rejected an attempt by

Cambodia to transform the matter be fore it in order to obtain a

ruling on the status of the Annex I map and the boundary

between the Parties.

1.33 In Chapter IV, Thailand will demonstrate that the Court

has no jurisdiction to deal with this Request for interpretation;
there is no dispute over the meaning and scope of the Judgment.

The real purpose of Cambodia’s Request is to obtain a ruling on

the boundary between the Parties, and such a claim, in respect of

a matter not sub judice in 1962, under the guise of a request for
interpretation in accordance with Article 60, is inadmissible.

1.34 In Chapter V, in the alternative, if the Court were to find
that it has jurisdiction, Thailand will demonstrate that

Cambodia’s Request misconstr ues the 1962 Judgment. The

Court did not determine a boundary between the Parties, nor did

it grant any status to the A nnex I line. Th e question of
sovereignty over the Temple did not require the Court to make a

determination of the locati on of the boundary between the

Parties and the subsequent practice of the Parties indicates
clearly that the Court did not do so. Cambodia has also

confused the genera l obligation for States to respect the

territorial integrity of each other with the specific determination

of the Court in the 1962 Judgment. In addition, Cambodia fails
to identify any basis in the 1962 Judgment for its claim that18 CHAPTER II

THE DISPUTE IN THE ORIGINAL PROCEEDINGS

(1959-1962)

2.1 From the outset, the dispute between Cambodia and

Thailand over the Temple was na rrowly defined; it was about

withdrawing Thai troops from the ruins of the Temple and the
claim of both Parties to sovere ignty over the Temple. This was

evident in the initial excha nges in 1949 between France and

Thailand and was continued in Cambodia’s Application to the
Court in 1959. This set the scope of the dispute for both the

jurisdictional and the merits phases of the case.

2.2 In section A, the treatment of the scope of the dispute in
the preliminary objections phase by both the Parties and the

Court will be dealt with, showi ng that the dispute was about

sovereignty over the Temple. In section B, it will be shown that

the treatment of the scope of the dispute by the Parties in their
written and oral pleadings in the merits phase also limited the

dispute to sovereignty over the Temple. The subject matter of

the dispute did not include the determination of the boundary.

A. The Scope of the Dispute in the Preliminary Objections

Phase

1. HISTORICAL B ACKGROUND

2.3 On 9 February 1949, the French Embassy in Bangkok

19 informed the Thai Ministry of Foreign Affairs that “un gardien

et trois hommes tous siamois ont été affectés à la garde des
23
ruines de Préah Vihear” . The “ruins of Preah Vihear”, the

Embassy asserted, were in Cambodian territory. On 21 March

1949, the French Embassy in Bangkok asked the Thai
authorities to bring the presence of Siamese guards at the ruins

of the Temple to an end, and on 9 May 1949, the French

Embassy formally requested the withdrawal of Thai guards from

the ruins24. On each occasion the French authorities continued

with their assertion that the Temple was in Cambodian territory,

invoking maps that purported to show the ruins of the Temple

on the Cambodian side of the boundary.

2.4 In 1954 a newly independent Cambodia renewed

complaints about the presence of Thai military guarding the

“ruins of Preah Vihear”, asserting “l’appartenance de ces ruines
au Cambodge” and referring to earlier French communications

as proof of this position. The Cambodian Note referred to the

matter as “l’affaire des Ruines de Préah Vihear” . On 9 June

1954, Cambodia advised Thailand that in view of the presence

of Thai military personnel at the ruins of the Temple, Cambodia

23I.C.J. Pleadings, Temple of Preah Vihear, “Note de la légation de France à
Bangkok en date du 9 février 1949”, Réplique du Gouvernement du
Royaume du Cambodge, Annex XIV, Vol. I, p. 103.
24
Ibid., “Note de la légation de France à Bangkok en date du 21 mars 1949”,
Réplique du Gouvernement du Royaume du Cambodge , Annex XV, Vol. I,
p. 104.
25
Ibid., “Lettre du 31 mars 1954 de la légation royale du Cambodge au
ministre des Affaires ét rangères de Thaïlande”, Réplique du Gouvernement
du Royaume du Cambodge, Annex XIX, Vol. I, p. 110.

20informed the Thai Ministry of Foreign Affairs that “un gardien

et trois hommes tous siamois ont été affectés à la garde des
23
ruines de Préah Vihear” . The “ruins of Preah Vihear”, the

Embassy asserted, were in Cambodian territory. On 21 March

1949, the French Embassy in Bangkok asked the Thai
authorities to bring the presence of Siamese guards at the ruins

of the Temple to an end, and on 9 May 1949, the French

Embassy formally requested the withdrawal of Thai guards from

the ruins24. On each occasion the French authorities continued

with their assertion that the Temple was in Cambodian territory,

invoking maps that purported to show the ruins of the Temple

on the Cambodian side of the boundary.

2.4 In 1954 a newly independent Cambodia renewed

complaints about the presence of Thai military guarding the

“ruins of Preah Vihear”, asserting “l’appartenance de ces ruines
au Cambodge” and referring to earlier French communications

as proof of this position. The Cambodian Note referred to the

matter as “l’affaire des Ruines de Préah Vihear” . On 9 June

1954, Cambodia advised Thailand that in view of the presence

of Thai military personnel at the ruins of the Temple, Cambodia

Cambodia made clear that it was lo calizing the issue to the plot

of land where the ruins of the Te mple were situated. Although

the English translation of the Cambodian Application uses the
less precise term “portion of Cambodian territory”, it is clear

that it was a very restricted por tion of what was alleged to be

Cambodian territory that was being referred to. It was a question

of sovereignty over what had been consistently described as the
ruins of the Temple.

2.7 This is confirmed in Cambodia’s request for relief,

which mirrored the pattern of 1949 and 1954. It asked the Court
to adjudge and declare:

“(1) that the Kingdom of Thailand is under an obligation
to withdraw the detachments of armed forces it has
stationed since 1954 in the ruins of the Temple of Preah

Vihear;

(2) that the territorial sovereignty over the Temple of
Preah Vihear belongs to the Kingdom of Cambodia.” 28

2.8 It is clear that the dispute as brought by Cambodia had a

very narrow focus. It was about withdrawing Thai military

personnel from the ruins of the Temple and sovereignty over the
Temple itself. It was by its very terms not a boundary dispute.

The maps that the French auth orities had referred to in 1949

were being invoked because of what they would show regarding

sovereignty over the Temple, and Cambodia asserted that:

28Ibid., Vol. I, p. 15.

22By using the terms “ parcelle (…) où se trouvent les ruines ”

Cambodia made clear that it was lo calizing the issue to the plot

of land where the ruins of the Te mple were situated. Although

the English translation of the Cambodian Application uses the

less precise term “portion of Cambodian territory”, it is clear

that it was a very restricted por tion of what was alleged to be
Cambodian territory that was being referred to. It was a question

of sovereignty over what had been consistently described as the

ruins of the Temple.

2.7 This is confirmed in Cambodia’s request for relief,

which mirrored the pattern of 1949 and 1954. It asked the Court
to adjudge and declare:

“(1) that the Kingdom of Thailand is under an obligation
to withdraw the detachments of armed forces it has
stationed since 1954 in the ruins of the Temple of Preah

Vihear;

(2) that the territorial sovereignty over the Temple of
Preah Vihear belongs to the Kingdom of Cambodia.” 28

2.8 It is clear that the dispute as brought by Cambodia had a

very narrow focus. It was about withdrawing Thai military

personnel from the ruins of the Temple and sovereignty over the

Temple itself. It was by its very terms not a boundary dispute.

The maps that the French auth orities had referred to in 1949

were being invoked because of what they would show regarding
sovereignty over the Temple, and Cambodia asserted that:

28Ibid., Vol. I, p. 15. spelling) stands was laid down by the Franco-Siamese
th 31
Treaty of 13 February, 1904” .

It then went on, “[t]he result was to leave the temple of Phra
32
Viharn in Thai territory” . Thailand produced a map to confirm

that position.

2.11 In its Observations on Thailand’s preliminary objections,

Cambodia responded to what Thailand had said, disputing the

Thai map and referring to a different map produced by the

Royal Thai Survey Department which the French Embassy in

Bangkok had noted in 1949 placed the “ruins of Preah Vihear”
33
in Cambodian territory . Thus, both Parties were continuing to

make it clear that the case on the merits was ab out sovereignty

over the Temple.

2.12 That this was the subject of the dispute was affirmed in

the oral arguments on preliminary objections. Counsel for

Thailand, Sir Frank Soskice, opened his statement to the Court

with the words, “this case concerns the ownership as between
34
Thailand and Cambodia of a very famous and ancient temple” .

The Agent for Cambodia, Mr. Truong Cang for his part referred

in his opening statement to an act of occupation by Thailand of

31 Ibid., Preliminary Objections of the Government of Thailand , Vol. I,
p. 133, para. 3.
32
Ibid, p. 134, para. 3.
33Ibid., Observations du Gouvernement royal du Cambodg e, Vol. I, p. 153,

para. 2.
34 Ibid., Oral Arguments (Preliminary Objections) , Vol. II, p. 10 (Sir Frank
Soskice, 10 April 1961).

24 spelling) stands was laid down by the Franco-Siamese
Treaty of 13 thFebruary, 1904” . 31

It then went on, “[t]he result was to leave the temple of Phra
Viharn in Thai territory” . Thailand produced a map to confirm

that position.

2.11 In its Observations on Thailand’s preliminary objections,

Cambodia responded to what Thailand had said, disputing the

Thai map and referring to a different map produced by the

Royal Thai Survey Department which the French Embassy in

Bangkok had noted in 1949 placed the “ruins of Preah Vihear”
33
in Cambodian territory . Thus, both Parties were continuing to

make it clear that the case on the merits was ab out sovereignty

over the Temple.

2.12 That this was the subject of the dispute was affirmed in

the oral arguments on preliminary objections. Counsel for

Thailand, Sir Frank Soskice, opened his statement to the Court

with the words, “this case concerns the ownership as between
Thailand and Cambodia of a very famous and ancient temple” 34.

The Agent for Cambodia, Mr. Truong Cang for his part referred

in his opening statement to an act of occupation by Thailand of

31 Ibid., Preliminary Objections of the Government of Thailand , Vol. I,

p. 133, para. 3.
32Ibid, p. 134, para. 3.
33
Ibid., Observations du Gouvernement royal du Cambodg e, Vol. I, p. 153,
para. 2.
34Ibid., Oral Arguments (Preliminary Objections) , Vol. II, p. 10 (Sir Frank

Soskice, 10 April 1961). 2.15 The Parties themselves had ne ver used either the term

“region” or the term “precincts” in defining their dispute; both

were introduced by the Court. Alone, the phrase “region of the

Temple of Preah Vihear” might have been of uncertain scope,
but it was qualified. It was not just the “region of the Temple of

Preah Vihear” – it was “the re gion of the Temple of Preah

Vihear and its precincts” (Emphasis added).

2.16 The term “precincts” carries the sense of enclosure. A

precinct often refers to the grounds immediately surrounding a

religious house or place of worshi p. This sense of “immediately

surrounding” is also reflected in the French translation of
precincts in the Judgment as “environs”. Thus, the reference to

“precincts” would have covere d the “ruins of the Temple”

referred to in Cambodia’s reques t. The “region” the Court was

referring to was a confined one , encompassing only the Temple

of Phra Viharn and its “immediate surroundings” – its precincts.

2.17 The Court rejected Thailand’s preliminary objections

and stated in the dispositif that it, “finds that it has jurisdiction to

adjudicate upon the dispute submitted to it on 6 October 1959
by the Application of Cambodia.” 38That dispute as it had said

earlier in the Judgment was th e dispute about territorial

sovereignty over the Temple and its precincts. Accordingly, the

Court had at the preliminary objections phase defined the

38Ibid., p. 35.

262.15 The Parties themselves had ne ver used either the term

“region” or the term “precincts” in defining their dispute; both

were introduced by the Court. Alone, the phrase “region of the
Temple of Preah Vihear” might have been of uncertain scope,

but it was qualified. It was not just the “region of the Temple of

Preah Vihear” – it was “the re gion of the Temple of Preah

Vihear and its precincts” (Emphasis added).

2.16 The term “precincts” carries the sense of enclosure. A

precinct often refers to the grounds immediately surrounding a
religious house or place of worshi p. This sense of “immediately

surrounding” is also reflected in the French translation of

precincts in the Judgment as “environs”. Thus, the reference to

“precincts” would have covere d the “ruins of the Temple”
referred to in Cambodia’s reques t. The “region” the Court was

referring to was a confined one , encompassing only the Temple

of Phra Viharn and its “immediate surroundings” – its precincts.

2.17 The Court rejected Thailand’s preliminary objections

and stated in the dispositif that it, “finds that it has jurisdiction to

adjudicate upon the dispute submitted to it on 6 October 1959
38
by the Application of Cambodia.” That dispute as it had said
earlier in the Judgment was th e dispute about territorial

sovereignty over the Temple and its precincts. Accordingly, the

Court had at the preliminary objections phase defined the

38Ibid., p. 35. B. The Scope of the Dispute in the Pleadings of the Parties

on the Merits

2.20 The previous section of th is Chapter has established,

first, that the territorial scope of the dispute submitted to the

Court in 1959 was rest ricted to the ruins of the Temple; second
and by way of consequence, th at the Court found jurisdiction

only in respect of this dispute relating to the Temple in its

Judgment on preliminary objections. The present section is

devoted to an analysis of the wr itten and oral pleadings on the

merits, submitted subsequently to the Judgment of 26 May 1961

on preliminary objections.

2.21 It is a generally recognized principle that the Court

cannot adjudge beyond the claims of the Parties found
39
admissible by the Court (the non ultra petita rule) . Therefore,

the assessment of the petitum in 1962 is necessary in order to

understand the extent of the 1962 res judicata, and it is at the
same time relevant for an appreciation of the admissibility of the

Request for interpretation. A rigorous assessment of the subject

matter and of the limits of the petitum of the Claimant is needed

to determine the extent of the res judicata in the 1962 Judgment,

which Cambodia seeks to put into question.

39 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congov.
Belgium), Judgment, I.C.J. Reports 2002, pp. 18-19, para. 43; Request for
Interpretation of the Judgment of November 20th, 1950, in the asylum case,
Judgment of November 27th, 1950, I.C.J. Reports 1950, p. 402. See also
paras. 3.22-3.23 below.

28 B. The Scope of the Dispute in the Pleadings of the Parties
on the Merits

2.20 The previous section of th is Chapter has established,

first, that the territorial scope of the dispute submitted to the

Court in 1959 was rest ricted to the ruins of the Temple; second

and by way of consequence, th at the Court found jurisdiction

only in respect of this dispute relating to the Temple in its
Judgment on preliminary objections. The present section is

devoted to an analysis of the wr itten and oral pleadings on the

merits, submitted subsequently to the Judgment of 26 May 1961

on preliminary objections.

2.21 It is a generally recognized principle that the Court

cannot adjudge beyond the claims of the Parties found
admissible by the Court (the non ultra petita rule) Therefore,

the assessment of the petitum in 1962 is necessary in order to

understand the extent of the 1962 res judicata, and it is at the

same time relevant for an appreciation of the admissibility of the

Request for interpretation. A rigorous assessment of the subject

matter and of the limits of the petitum of the Claimant is needed

to determine the extent of the res judicata in the 1962 Judgment,
which Cambodia seeks to put into question.

39
Arrest Warrant of 11 April 2000 (Democratic Republic of thev.ongo
Belgium), Judgment, I.C.J. Reports 2002, pp. 18-19, para. 43; Request for
Interpretation of the Judgment of November 20th, 1950, in the asylum case,
Judgment of November 27th, 1950, I.C.J. Reports 1950, p. 402. See also
paras. 3.22-3.23 below. 2.24 This brief description calls for several remarks: first, the

subject matter of the dispute is thus positively identified as

concerning sovereignty over the Te mple. Such clarification, in
42
line with the Court’s Judgment on preliminary objections , was
43
necessary since the opening paragraph of the Application ,
44
reflected in Cambodia’s first submission , could create the

impression that the Court was pr imarily seised of a dispute

about unlawful occupation and use of force, which was indeed

not the case.

2.25 At the same time, this description delimits the territorial

scope of the dispute submitted to the Court, which is restricted

to “a portion of land on which the temple of Phra Viharn

stands”. In delimiting this territorial scope, Thailand did not

attempt in any way to reduce the territorial scope of Cambodia’s

submissions; on the contrary, it used Cambodia’s own terms as

appearing in the Application, where Cambodia was denouncing

“the occupation of a portion of Cambodian territory (...) where
45
there are the ruins of (...) the Temple of Preah Vihear” .

42
See paras 2.10 - 2.17 above.
43I.C.J. Pleadings, Temple of Preah Vihear, Application, Vol. I, p. 4, para. 1.

44Ibid., p. 15.
45
Ibid., p. 4, para. 1. (Emphasis added).

302.24 This brief description calls for several remarks: first, the
subject matter of the dispute is thus positively identified as

concerning sovereignty over the Te mple. Such clarification, in

line with the Court’s Judgment on preliminary objections 42, was

necessary since the opening paragraph of the Application 43,
44
reflected in Cambodia’s first submission , could create the

impression that the Court was pr imarily seised of a dispute

about unlawful occupation and use of force, which was indeed
not the case.

2.25 At the same time, this description delimits the territorial

scope of the dispute submitted to the Court, which is restricted

to “a portion of land on which the temple of Phra Viharn

stands”. In delimiting this territorial scope, Thailand did not

attempt in any way to reduce the territorial scope of Cambodia’s
submissions; on the contrary, it used Cambodia’s own terms as

appearing in the Application, where Cambodia was denouncing

“the occupation of a portion of Cambodian territory (...) where
45
there are the ruins of (...) the Temple of Preah Vihear” .

42See paras 2.10 - 2.17 above.
43
I.C.J. Pleadings, Temple of Preah Vihear, Application, Vol. I, p. 4, para. 1.
44Ibid., p. 15.
45
Ibid., p. 4, para. 1. (Emphasis added). 2.28 It is to this claim of sovereignty that Thailand

endeavoured to respond in its Counter-Memorial, by asserting

its own sovereignty, on the basis of the same legal principles as

those Cambodia had put forward: the existence of a title whose
origin was to be found in the same treaty as the one invoked by

Cambodia (the 1904 Treaty) and th e correlative exercise of

sovereign acts over the territory in dispute:

“The Government of Cambodia alleges that its ‘right can

be established from three poi nts of view’ (Application,
par. 2). The first of these is said to be ‘the terms of the
international conventions delimiting the frontier between
Cambodia and Thailand’. (...)

The Government of Thailand agrees that this Treaty is

fundamental. It is therefore common ground between the
parties that the basic issue before the Court is the
application or interpretation of that Treaty. It defines the
boundary in the area of the te mple as the watershed in
the Dangrek mountains. The true effect of the Treaty, as

will be demonstrated later, is to put the temple on the
Thai side of the frontier. (...)

The evidence adduced in support of the second
contention is exiguous in the extreme. Against the final
negative contention, the Government of Thailand will

show that it has in fact exercised various acts of
sovereignty over Phra Viharn f47 many years without
any interference or protest.”

2.29 Comparing these three pieces of the written proceedings

(Application, Memorial and Counter-Memorial), it is
remarkable that both States shared the same conception of the

47 Ibid., Counter-Memorial of the Royal Government of Thailand , Vol. I,
p. 169, para. 3. (Emphasis added).

322.28 It is to this claim of sovereignty that Thailand

endeavoured to respond in its Counter-Memorial, by asserting

its own sovereignty, on the basis of the same legal principles as

those Cambodia had put forward: the existence of a title whose

origin was to be found in the same treaty as the one invoked by

Cambodia (the 1904 Treaty) and th e correlative exercise of
sovereign acts over the territory in dispute:

“The Government of Cambodia alleges that its ‘right can
be established from three poi nts of view’ (Application,

par. 2). The first of these is said to be ‘the terms of the
international conventions delimiting the frontier between
Cambodia and Thailand’. (...)

The Government of Thailand agrees that this Treaty is

will be demonstrated later, is to put the temple on the
Thai side of the frontier. (...)

The evidence adduced in support of the second

contention is exiguous in the extreme. Against the final
negative contention, the Government of Thailand will
show that it has in fact exercised various acts of
sovereignty over Phra Viharn for many years without
any interference or protest.” 47

2.29 Comparing these three pieces of the written proceedings

(Application, Memorial and Counter-Memorial), it is

remarkable that both States shared the same conception of the

47Ibid., Counter-Memorial of the Royal Government of Thailand , Vol. I,
p. 169, para. 3. (Emphasis added). 2.32 In consequence, Thailand’s Rejoinder simply responded

to Cambodia’s claims in the Reply, and did not revert to the

definition of the subject matter of the dispute, which was
considered at that stage as known to and shared by the Parties 51,

and confirmed by the Court in the Judgment on preliminary

objections:

“It remains only to return to the basic issue in this case.

The Court has remarked tha52 ‘it is a dispute about
territorial sovereignty’” .

2.33 Therefore, the definition of the subject matter of the

dispute only appeared incidental ly in the development of the

arguments. For instance when Thailand was arguing that it had

been at all times in possession of the Temple:

“Nothing was said or done before that Commission [the

Washington Conciliation Commission] involving the
frontier in the Dangrek ra nge or challenging Thai
sovereignty over the temple area . France did not claim
the temple, and nothing was said which could have

indicated to the Government of 53ailand that its right to
Phra Viharn was disputed.”

2.34 By contrast with the clarity of the written proceedings,

the oral proceedings enshrouded the subject matter of the

dispute in fog. In his opening speech Cambodia’s first pleader,

Mr. Dean Acheson, reintroduced an ambiguous conception of

51
I.C.J. Pleadings, Temple of Preah Vihear, Rejoinder of the Royal
Government of Thailand, Vol. I, p. 572, para. 54.
52Ibid., p. 597, para. 111.
53
Ibid., p. 579, para. 68. (Emphasis added).

342.32 In consequence, Thailand’s Rejoinder simply responded
to Cambodia’s claims in the Reply, and did not revert to the

definition of the subject matter of the dispute, which was

considered at that stage as known to and shared by the Parties 51,

and confirmed by the Court in the Judgment on preliminary

objections:

“It remains only to return to the basic issue in this case.
The Court has remarked that ‘it is a dispute about
territorial sovereignty’” 52.

2.33 Therefore, the definition of the subject matter of the
dispute only appeared incidental ly in the development of the

arguments. For instance when Thailand was arguing that it had

been at all times in possession of the Temple:

“Nothing was said or done before that Commission [the
Washington Conciliation Commission] involving the
frontier in the Dangrek ra nge or challenging Thai

sovereignty over the temple area . France did not claim
the temple, and nothing was said which could have
indicated to the Government of Thailand that its right to
Phra Viharn was disputed.” 53

2.34 By contrast with the clarity of the written proceedings,

the oral proceedings enshrouded the subject matter of the

dispute in fog. In his opening speech Cambodia’s first pleader,

Mr. Dean Acheson, reintroduced an ambiguous conception of

51
I.C.J. Pleadings, Temple of Preah Vihear, Rejoinder of the Royal
Government of Thailand, Vol. I, p. 572, para. 54.
52Ibid., p. 597, para. 111.
53
Ibid., p. 579, para. 68. (Emphasis added). Thailand’s Counsel later noted, this line of argumentation

opened with a presumption which called for a demonstration:

“The peculiar sequence of the two submissions invites
comment. One would have thought that the logical order
would be for Cambodia first to claim a right to territorial

sovereignty and then to denounce the stationing by
Thailand of armed forces in the Temple area. But the
way it is put seems to me like placing the cart before the
horse. Cambodia begins at the outset with the
presumption that the Temple already belongs to her.

Only as a corollary measure does Cambodia ask the
Court to declare her right to territorial sovereignty. By
making this initial presumption, Cambodia has already
begun to distort the case.” 56

2.36 Though the pleadings restored the respective hierarchy

of these two claims, they nonetheless both remained part and

parcel of the definition of the dispute and of the petitum. This

consequently had an impact on the res judicata, for the Court
57
had to respond to both claims .

2.37 The second confusing element in Cambodia’s positions

during the oral pleadings was more disturbing. It revealed not so

much a logical flaw, but rather a juridical flaw. Cambodia

attempted to expand the territorial scope of its initial claims

from the ruins of the Temple to the wider undefined region of
the Temple, thus completely distorting the subject matter of the

dispute as previously underst ood by both Parties. This first

56I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments, Vol. II, p. 212
(Mr. Seni Pramoj, 7 March 1962).

57See paras. 3.5–3.13 below.

36Thailand’s Counsel later noted, this line of argumentation
opened with a presumption which called for a demonstration:

“The peculiar sequence of the two submissions invites
comment. One would have thought that the logical order

would be for Cambodia first to claim a right to territorial
sovereignty and then to denounce the stationing by
Thailand of armed forces in the Temple area. But the
way it is put seems to me like placing the cart before the

horse. Cambodia begins at the outset with the
presumption that the Temple already belongs to her.
Only as a corollary measure does Cambodia ask the
Court to declare her right to territorial sovereignty. By

making this initial presumpt56n, Cambodia has already
begun to distort the case.”

2.36 Though the pleadings restored the respective hierarchy

of these two claims, they nonetheless both remained part and

parcel of the definition of the dispute and of the petitum. This
consequently had an impact on the res judicata, for the Court

had to respond to both claims . 57

2.37 The second confusing element in Cambodia’s positions

during the oral pleadings was more disturbing. It revealed not so

much a logical flaw, but rather a juridical flaw. Cambodia

attempted to expand the territorial scope of its initial claims
from the ruins of the Temple to the wider undefined region of

the Temple, thus completely distorting the subject matter of the

dispute as previously underst ood by both Parties. This first

56I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments, Vol. II, p. 212
(Mr. Seni Pramoj, 7 March 1962).
57
See paras. 3.5–3.13 below. forward to declare that his Government wished to claim
territorial sovereignty over the region of Phra Viharn.

Stopping to enquire into the nature of the newly
presented Cambodian request, the Court may have
noticed that to claim territorial sovereignty over the
Temple, on the one hand, a nd to claim territorial
sovereignty over the region of Phra Viharn, on the other
hand, are quite different. The first claim is vague

enough. But we were able, at least, to refer to the need to
worship at the Temple in order to conclude that
Cambodia wished the Court to declare and adjudge her
territorial sovereignty over an area sufficient for such
purpose. However, the latter claim for the whole region
of Phra Viharn is entirely without any terms of
reference. The word ‘region’ in itself is so ill-defined in

relation to actual area that , by wishful thinking, it could
be used to cover two or three more provinces. The basic
question therefore arises as to what Cambodia is really
seeking to claim. I have no need to remind the Court of
the difficulties of a defendant when faced with such a
vague and ill-defined claim. How are we to prepare our

defence? Should we understand that the Cambodian
claim refers to the entire borde r? It seems that this is
what Cambodia now claims. In the final submission
made by the Agent of the Government of Cambodia on
Monday the 5 thof this month, the Court was asked to
uphold the entire Dangrek border as marked out in

Annex I.

The Court will notice that if confined to the original
request for territorial sovereignty over the Temple of
Phra Viharn, the border in volved in the Cambodian
submission would measure less than a quarter of one

kilometre, this being the extreme width of the
promontory where the Temple’s largest building is
situated. The later submission, on the other hand,
involves the whole stretch of Dangrek frontier allegedly
delimited on Annex I by the Mixed Commission of
1904. This frontier extends for approximately 112

kilometres. Since Annex I is but one in a series of maps
some of which were not s uperseded by the Treaty of

38forward to declare that his Government wished to claim

territorial sovereignty over the region of Phra Viharn.

Stopping to enquire into the nature of the newly
presented Cambodian request, the Court may have

noticed that to claim territorial sovereignty over the
Temple, on the one hand, a nd to claim territorial
sovereignty over the region of Phra Viharn, on the other
hand, are quite different. The first claim is vague
enough. But we were able, at least, to refer to the need to
It thus immediately appeared that, through this terminological
worship at the Temple in order to conclude that
Cambodia wished the Court to declare and adjudge her shift, Cambodia was attempting to transform a dispute over
territorial sovereignty over an area sufficient for such
purpose. However, the latter claim for the whole region territorial sovereignty into a dispute over boundary delimitation.

of Phra Viharn is entirely without any terms of
reference. The word ‘region’ in itself is so ill-defined in 2.39
relation to actual area that , by wishful thinking, it could
be used to cover two or three more provinces. The basic damaging to Thailand’s position, since Cambodia’s Counsel
question therefore arises as to what Cambodia is really
had, during the same oral proc
seeking to claim. I have no need to remind the Court of
the difficulties of a defendant when faced with such a positions in respect of the territorial scope of Cambodia’s
vague and ill-defined claim. How are we to prepare our
defence? Should we understand that the Cambodian claims. Indeed, despite this terminological change in the
claim refers to the entire borde r? It seems that this is Agent’s opening speech

what Cambodia now claims. In the final submission claims with new, enlarged claims
made by the Agent of the Government of Cambodia on
Monday the 5 thof this month, the Court was asked to reaffirmed and repeated that the territorial scope of the dispute
uphold the entire Dangrek border as marked out in
was indeed very limited, and di d so during the second round of
Annex I.
the oral proceedings .
The Court will notice that if confined to the original
request for territorial sovereignty over the Temple of
Phra Viharn, the border in volved in the Cambodian

submission would measure less than a quarter of one
kilometre, this being the extreme width of the
promontory where the Temple’s largest building is
situated. The later submission, on the other hand, 61I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments, Vol. II, p. 216
(Mr. Seni Pramoj, 7 March 1962). (Emphasis added).
involves the whole stretch of Dangrek frontier allegedly
delimited on Annex I by the Mixed Commission of 62See para. 2.37 above.
1904. This frontier extends for approximately 112 63See para. 2.68 below.
kilometres. Since Annex I is but one in a series of maps
some of which were not s uperseded by the Treaty of 64See paras. 2.40–2.46 below. (b) The Territorial Scope of the Dispute Was Circumscribed to

the Ground on Which the Temple Stood 65

2.40 Cambodia had never given the precise dimensions of the

“portion of territory” it was claiming, since the focus of its

claim was the Temple. However, the pleadings permit an
understanding of them, by reference to the extent of the Temple,

or more precisely of the ruins, as they existed at the time when

the Application was introduce d. Indeed, since Cambodia was

asking not only for a right to access the Temple, as a cultural

artefact, but also for sovereignty over it, this implied a claim to

the ground on which the Temple stood. The intrinsic link
between the extent of the Temple and the extent of the territory

claimed was established in the Application 66and was confirmed

in the subsequent written and oral pleadings. As Professor

Reuter underlined in elegant and unambiguous terms, during the

second round of oral pleadings:

“Mais que l’on se rapporte à la conclusion finale

première de la requête et on verra peut-être qu’avec un
peu de maladresse, mais avec une clarté parfaite, ce que
revendique le Cambodge, c’est le temple.

Je lis la deuxième conclusion finale: ‘Le Royaume du

Cambodge conclut à ce que la souveraineté territoriale
sur le temple de Préah Vihéar appartient au
Cambodge.’ Formule peut-être un peu gauche, mais qui
indique bien que l’on revendique non seulement le

65Hereinafter referred to as Temple ground.

66See paras. 2.6 and 2.23–2.25 above.

40 (b) The Territorial Scope of the Dispute Was Circumscribed to
65
the Ground on Which the Temple Stood

2.40 Cambodia had never given the precise dimensions of the

“portion of territory” it was claiming, since the focus of its

claim was the Temple. However, the pleadings permit an

understanding of them, by reference to the extent of the Temple,

or more precisely of the ruins, as they existed at the time when

the Application was introduce d. Indeed, since Cambodia was

asking not only for a right to access the Temple, as a cultural

artefact, but also for sovereignty over it, this implied a claim to
the ground on which the Temple stood. The intrinsic link

between the extent of the Temple and the extent of the territory

claimed was established in the Application 66 and was confirmed

in the subsequent written and oral pleadings. As Professor

Reuter underlined in elegant and unambiguous terms, during the

second round of oral pleadings:

“Mais que l’on se rapporte à la conclusion finale
première de la requête et on verra peut-être qu’avec un
peu de maladresse, mais avec une clarté parfaite, ce que
revendique le Cambodge, c’est le temple.

Je lis la deuxième conclusion finale: ‘Le Royaume du
Cambodge conclut à ce que la souveraineté territoriale
sur le temple de Préah Vihéar appartient au

Cambodge.’ Formule peut-être un peu gauche, mais qui
indique bien que l’on revendique non seulement le

65Hereinafter referred to as Temple ground.
66
See paras. 2.6 and 2.23–2.25 above. 2.42 Moreover, in the Reply a nd in the oral pleadings,

Cambodia insisted that solely the land upon which the Temple

was located ought to be considered in dispute before the Court.
Such insistence was needed in order to dismiss Thailand’s

evidence of effectivités in the areas situat ed nearby the Temple,

though not in respect of the Temple itself:

“A cet égard, les actes publics les plus significatifs sont
ceux qui concernent le temple lui-même - seule parcelle
de la frontière contestée - parcelle sans habitant où il n’y

a pas lieu de développer les mesures de protection de la
santé, de recouvrer des impôts, d’opérer des
recensements.

L’activité des autorités françaises et cambodgiennes
s’est manifestée d'une façon publique, continue et
effective dans ce domaine.” 70

In the same vein, it was further claimed:

“Les faits invoqués par la Thaïlande pour consolider ou
affirmer sa souveraineté sont, eu égard à la nature de la
71
parcelle litigieuse, pratiquement sans pertinence.”

By rejecting the relevance of Thailand’s sovereign activities in

sectors outside the “ parcelle litigieuse ” (“disputed portion of

territory”) – that is the Temple – though these sectors were

70 Ibid., Réplique du Gouvernement du Royaume du Cambodge , Vol. I,
p. 466, para. 57. (Emphasis added).
71
Ibid., Vol. I, p. 469, para. 68. (Emphasis added). For the same line of
argument, in the oral pleadings, see Ibid., Oral Arguments, Vol. II, p. 189
and p. 190 (Mr. Roger Pinto, 3 March 1962); p. 538 (Mr. Paul Reuter,
26 March 1962); p. 541, p. 546, p. 548, p. 553 and p. 554 (Mr. Paul Reuter,
27 March 1962).

422.42 Moreover, in the Reply a nd in the oral pleadings,

Cambodia insisted that solely the land upon which the Temple

was located ought to be considered in dispute before the Court.

Such insistence was needed in order to dismiss Thailand’s

evidence of effectivités in the areas situat ed nearby the Temple,

though not in respect of the Temple itself:

“A cet égard, les actes publics les plus significatifs sont
ceux qui concernent le temple lui-même - seule parcelle

de la frontière contestée - parcelle sans habitant où il n’y
a pas lieu de développer les mesures de protection de la
santé, de recouvrer des impôts, d’opérer des
recensements.

L’activité des autorités françaises et cambodgiennes
s’est manifestée d'une façon publique, continue et
70
effective dans ce domaine.”

In the same vein, it was further claimed:

“Les faits invoqués par la Thaïlande pour consolider ou
affirmer sa souveraineté sont, eu égard à la nature de la
71
parcelle litigieuse, pratiquement sans pertinence.”

By rejecting the relevance of Thailand’s sovereign activities in

sectors outside the “ parcelle litigieuse ” (“disputed portion of

territory”) – that is the Temple – though these sectors were

70 Ibid., Réplique du Gouvernement du Royaume du Cambodge , Vol. I,
p. 466, para. 57. (Emphasis added).

71Ibid., Vol. I, p. 469, para. 68. (Emphasis added). For the same line of
argument, in the oral pleadings, see Ibid., Oral Arguments, Vol. II, p. 189
and p. 190 (Mr. Roger Pinto, 3 March 1962); p. 538 (Mr. Paul Reuter,
26 March 1962); p. 541, p. 546, p. 548, p. 553 and p. 554 (Mr. Paul Reuter,
27 March 1962). to focus upon the Temple only, which was the crucial or the

critical area, meaning the area in dispute:

“What, then, is it which has been suggested? In the first

place, that the First Comm ission’s officers, agents,
surveyors or topographers, or whatever they should be
called, made a mistake as to where a stream northwest of
the Temple went when it di sappeared around the side of
Pnom Trap. It is said that these gentlemen, now

doubtless gathered to their fathers, thought that the
stream made a bend to the southward around the
mountain into Cambodia; whereas it is now claimed that
it makes a bend to the north and flows into Thailand.

Suppose they did; what of it? (...)

But this area, north-west of the Temple, is not the
crucial area. It is not ‘the doubtful area’ which Professor

Schermerhorn has pointed out, and to investigate which
he said, in his second explanation of Mr. Ackermann’s
visit, was the principal purpose of that visit.”77

He thus attempted to discredit Thailand’s expert evidence by

arguing that in the immediate vicinity of the Temple there was a

stream flowing in 1907 that le ft the Temple in Cambodian

territory, a hypothesis that had no t been taken into account by
D.A.I. experts . He then concluded:

“So I do not for a moment grant that the Commission
was in error in placing the Temple on the Cambodian
side of the border. Moreover, the error claimed to have

been made in the critical area, in the circumstances now

77I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments , Vol. II,
pp. 464-465 (Mr. Dean Acheson, 22 March 1962). (Emphasis added).

78Ibid., pp. 465-472.

44to focus upon the Temple only, which was the crucial or the

critical area, meaning the area in dispute:

“What, then, is it which has been suggested? In the first
place, that the First Comm ission’s officers, agents,

surveyors or topographers, or whatever they should be
called, made a mistake as to where a stream northwest of
the Temple went when it di sappeared around the side of
Pnom Trap. It is said that these gentlemen, now

Suppose they did; what of it? (...)

But this area, north-west of the Temple, is not the
crucial area. It is not ‘the doubtful area’ which Professor
Schermerhorn has pointed out, and to investigate which
he said, in his second explanation of Mr. Ackermann’s
77
visit, was the principal purpose of that visit.”

He thus attempted to discredit Thailand’s expert evidence by

arguing that in the immediate vicinity of the Temple there was a

stream flowing in 1907 that le ft the Temple in Cambodian

territory, a hypothesis that had no t been taken into account by
D.A.I. experts . He then concluded:

“So I do not for a moment grant that the Commission

was in error in placing the Temple on the Cambodian
side of the border. Moreover, the error claimed to have
been made in the critical area, in the circumstances now

77 I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments , Vol. II,
pp. 464-465 (Mr. Dean Acheson, 22 March 1962). (Emphasis added).
78
Ibid., pp. 465-472. 2. THE SUBJECT M ATTER OF THE DISPUTE DID NOT INCLUDE THE
D ETERMINATION OF THE B OUNDARY

2.47 A reading of the written and oral pleadings confirms that

the Parties were both attached to establishing the soundness of

their claims over the Temple, and not to establis hing the course

of their common boundary in the region of Phra Viharn or of the

Dangrek mountains. No doubt the issue of the boundary
occupied part of their pleadings, but it was never a matter in

itself. The Parties showed little interest in the location of the line

at this place, while they were, by contrast, most concerned with

the position of the Temple in relation to the line.

(a) The Role of the Annex I Map in Cambodia’s Argumentation

2.48 Before entering into the heart of the subject, a few words

are necessary to recall the factua l context explaining the rather

lengthy developments in respect of the Annex I map in the

pleadings. Cambodia introduced the map in its Application as
84
proof of a treaty title over the Temple .

2.49 However, it must be noted that Cambodia’s
argumentation changed rather radica lly in this respect. In its

Application, it had advanced two arguments to prove this

conventional title: the Annex I map was in fact presented as

84
I.C.J. Pleadings, Temple of Preah Vihear, Application, Vol. I, p. 6, para. 5.

462. THE SUBJECT M ATTER OF THE D ISPUTE D IDN OT INCLUDE THE

D ETERMINATION OF THE BOUNDARY

2.47 A reading of the written and oral pleadings confirms that

the Parties were both attached to establishing the soundness of

their claims over the Temple, and not to establis hing the course

of their common boundary in the region of Phra Viharn or of the

Dangrek mountains. No doubt the issue of the boundary

occupied part of their pleadings, but it was never a matter in

itself. The Parties showed little interest in the location of the line

at this place, while they were, by contrast, most concerned with

the position of the Temple in relation to the line.

(a) The Role of the Annex I Map in Cambodia’s Argumentation

2.48 Before entering into the heart of the subject, a few words

are necessary to recall the factua l context explaining the rather

lengthy developments in respect of the Annex I map in the

pleadings. Cambodia introduced the map in its Application as
proof of a treaty title over the Temple .

2.49 However, it must be noted that Cambodia’s

argumentation changed rather radica lly in this respect. In its

Application, it had advanced two arguments to prove this

conventional title: the Annex I map was in fact presented as

84I.C.J. Pleadings, Temple of Preah Vihear, Application, Vol. I, p. 6, para. 5. the 1904-1907 settlement, recognized the validity of the

boundaries established by these treaties, in the Reply, it focused

on Thailand’s recognition of the Temple being in Cambodia 91.

Likewise, in order to establish the existence of its title,

Cambodia devoted a substantially more developed chapter to the

exercise of its sovereignty over the Temple, extracting from the

mass of facts those concerning the Temple alone, mainly
92
examples of archaeological activities .

2.51 Cambodia’s oral pleadings pursued the same line of

argumentation: while still maintaining that the Annex I map was
93
representing the work of the Delimitation Commission and
94
correctly illustrated the watershed line , at least as it had
95
existed in 1904-1907 , much more attention was devoted to

91See paras. 2.53–2.58 below.

94Ibid., pp. 143–147, 155–160 (Mr. Dean Acheson, 1 March 1962); see also
ibid., pp. 452–473 (Mr. Dean Acheson, 21 March 1962).
95
The possibility of a change of the watershed line between 1904 and1962
was pleaded by Mr. Dean Acheson. See in particular the conclusions he had
drawn from the cross examination of experts, ibid., pp. 464–473 (22 March
1962).

48the 1904-1907 settlement, recognized the validity of the

boundaries established by these treaties, in the Reply, it focused
91
on Thailand’s recognition of the Temple being in Cambodia .

Likewise, in order to establish the existence of its title,

Cambodia devoted a substantially more developed chapter to the

exercise of its sovereignty over the Temple, extracting from the

mass of facts those concerning the Temple alone, mainly
92
examples of archaeological activities .

2.51 Cambodia’s oral pleadings pursued the same line of

argumentation: while still maintaining that the Annex I map was

representing the work of the Delimitation Commission 93 and

correctly illustrated the watershed line 94, at least as it had

existed in 1904-1907 95, much more attention was devoted to

91See paras. 2.53–2.58 below.

92I.C.J. Pleadings, Temple of Preah Vihear, Réplique du Gouvernement du
Royaume du Cambodge, Vol. I, pp. 466–469.
93
See I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments , Vol. II,
pp. 139-141, 149-153 (Mr. Dean Acheson, 1 March 1962); see also ibid.,
pp. 161-164, pp. 167–179 (Mr. Roger Pinto, 2 March 1962); and during the
second round, ibid., pp. 448-452 (Mr. Dean Acheson, 21March 1962), ibid.,
pp. 489–506 (Mr. Roger Pinto, 23 March 1962).
94
Ibid., pp. 143–147, 155–160 (Mr. Dean Acheson, 1 March 1962); see also
ibid., pp. 452–473 (Mr. Dean Acheson, 21 March 1962).
95The possibility of a change of the watershed line between 1904 and1962
was pleaded by Mr. Dean Acheson. See in particular the conclusions he had
drawn from the cross examination of experts, ibid., pp. 464–473 (22 March

1962). (b) The Map Line as a Line for Determining the Location of the

Temple

2.53 From the very outset, Cambodia made clear that the

Annex I map was the best proof of its title over the Temple

since Phra Viharn was marked upon it as being south of the
boundary line 97. This was further stressed in the Reply .98

2.54 During the oral pleadings, Professor Pinto strongly

insisted upon Cambodia’s main inference that the explicit

mention of the Temple on the Annex I map could only be the

result of a decision of th e 1904 Delimitation Commission to
attribute the Temple to France. The map was again treated as a

document of attribution of sovereignty and not as a delimitation

instrument, since the only evidence sought by Cambodia’s

Counsel related to the Temple:

“Il nous faut alors rechercher comment les Parties se
sont effectivement conduite s en ce qui concerne la
délimitation dans les Dangr ek, et singulièrement à
Préah Vihéar, dans la pratiq ue française et dans la
pratique siamoise. (...)

Mais une carte est une publication comme une autre -
les auteurs (...) relisent leur manuscrit et leurs épreuves.
Ils les corrigent attentivement. Bien sûr, ils laissent
passer quelques coquilles.

97Ibid., Application, Vol. I, p. 6, para. 5.

98“La carte [de l’Annexe I] montre clairement l’emplacement du Temple de
Préah Vihéar et situe clairement le temple du côté cambodgien de la
frontière.” (Ibid., Réplique du Gouvernement Royal du Cambodge , Vol. I,
p. 443; see also ibid., p. 460).

50 (b) The Map Line as a Line for Determining the Location of the
Temple

2.53 From the very outset, Cambodia made clear that the

Annex I map was the best proof of its title over the Temple

since Phra Viharn was marked upon it as being south of the
97 98
boundary line . This was further stressed in the Reply .

2.54 During the oral pleadings, Professor Pinto strongly

insisted upon Cambodia’s main inference that the explicit

mention of the Temple on the Annex I map could only be the

result of a decision of th e 1904 Delimitation Commission to

attribute the Temple to France. The map was again treated as a

document of attribution of sovereignty and not as a delimitation

instrument, since the only evidence sought by Cambodia’s
Counsel related to the Temple:

“Il nous faut alors rechercher comment les Parties se
sont effectivement conduite s en ce qui concerne la

délimitation dans les Dangr ek, et singulièrement à
Préah Vihéar, dans la pratiq ue française et dans la
pratique siamoise. (...)

Mais une carte est une publication comme une autre -
les auteurs (...) relisent leur manuscrit et leurs épreuves.
Ils les corrigent attentivement. Bien sûr, ils laissent
passer quelques coquilles.

97Ibid., Application, Vol. I, p. 6, para. 5.
98
“La carte [de l’Annexe I] montre clairement l’emplacement du Temple de
Préah Vihéar et situe clairement le temple du côté cambodgien de la
frontière.” (Ibid., Réplique du Gouvernement Royal du Cambodge , Vol. I,
p. 443; see also ibid., p. 460). 2.55 Cambodia did not simply insist on the positioning of the

Temple in relation to the Annex I line: when it addressed the

recognition arguments, it focuse d again on the position of the

Temple on the various maps produced in the 1908-1962 period.

The examples are far too many to be quoted in extenso. Some

quotations from the pleadings should suffice to give a precise

idea of the tenor of the argument:

“Les cartes officielles, publiées par la Thaïlande,
placent Préah Vihéar du côté cambodgien de la
frontière.” 102

Thailand’s refutations of these arguments are found in the

Rejoinder 103 and they all confirm the focus on the positioning of

the Temple. The boundary line, whether the Annex I line, or the

one advanced by Thailand as il lustrating the watershed, were

never considered in themselves, but only in its relation to the

Temple:

“One of the sheets (...) covers Phra Viharn, and shows
the frontier in its proper place and the temple on the Thai
104
side of it.”

“Only one map has been produced (...) showing the
temple in Cambodian territory.” 105

102
Ibid., Réplique du Gouvernement Royal du Cambodge , Vol. I, p. 463,
para. 50 (Emphasis in the original). For examples of such maps, see ibid.,
paras. 51-52 or ibid., Application, pp. 10-11, paras. 16–17; ibid., p. 13,
para. 24; ibid., Oral Arguments, Vol. II, p. 164, p. 170, 182–185 (Mr. Roger
Pinto, 2-3 March 1962).
103
See ibid ., Rejoinder of the Royal Government of Thailand, Vol. I,
pp. 573–583.
104Ibid., p. 574, para. 57. See also ibid., para. 59.
105
Ibid., p. 576, para. 63. See also ibid., para. 64, p. 577, paras. 64-66.

522.55 Cambodia did not simply insist on the positioning of the

Temple in relation to the Annex I line: when it addressed the

recognition arguments, it focuse d again on the position of the

Temple on the various maps produced in the 1908-1962 period.

The examples are far too many to be quoted in extenso. Some
quotations from the pleadings should suffice to give a precise

idea of the tenor of the argument:

“Les cartes officielles, publiées par la Thaïlande,
placent Préah Vihéar du côté cambodgien de la
102
frontière.”

Thailand’s refutations of these arguments are found in the
103
Rejoinder and they all confirm the focus on the positioning of

the Temple. The boundary line, whether the Annex I line, or the

one advanced by Thailand as il lustrating the watershed, were

never considered in themselves, but only in its relation to the
Temple:

“One of the sheets (...) covers Phra Viharn, and shows

the frontier104 its proper place and the temple on the Thai
side of it.”

“Only one map has been produced (...) showing the
105
temple in Cambodian territory.”

103See ibid ., Rejoinder of the Royal Government of Thailand, Vol. I,
pp. 573–583.
104
105Ibid., p. 574, para. 57. See also ibid., para. 59.
Ibid., p. 576, para. 63. See also ibid., para. 64, p. 577, paras. 64-66. de Tokyo, j’ai mentionné que sous le nom de Préah
Vihéar se trouvait celui de ruines. En réalité, je ne

m’étais pas reporté, et j’ai eu tort, immédiatement, sur le
champ, à la carte. Ce n’est pas le mot de ruines qui se
trouve indiqué, c’est plus précisément celui de
temple.” 109

2.57 In the same vein, the other events allegedly implying

recognition by Thailand of Cam bodia’s sovereignty could only

apply to the Temple itself and were only invoked for that

purpose. This is the case in particular with Prince Damrong’s
visit in 1930, which was consid ered by Cambodia as a crucial

event for recognition purpose 110. The same obviously applies to

France’s protests of 1949 against Thailand having placed guards

in the Temple and Thailand’s silence on the matter 111.

2.58 The Parties’ pleadings e xplain the function of the

boundary line in the 1959-1962 proceedings: the documents

illustrating it (or rather them, since, as will be seen in the next

paragraphs, several lines were presented to the Court) were

109Ibid., pp. 184–185 (Mr. Roger Pinto, 2 March 1962).

110 Ibid., Réplique du Gouvernement Royal du Cambodge , Vol. I, pp. 464–
465, para. 55. For Thailand’s response, see ibid., Rejoinder of the Royal
Government of Thailand , p. 581, para. 73. For the oral pleadings, see also
ibid., Oral Arguments, Vol. II, pp. 189-190 (Mr. Roger Pinto, 3 March 1962)
and, in response for Thailand, ibid., pp. 312-313 (Sir Frank Soskice,
13 March 1962). For other examples when Thailand should have raised
reservations of sovereignty, see ibid., p. 198 (Mr. Paul Reuter, 3 March 1962)

(signature of an agreement of cooperation on archaeological matters between
France and Siam); ibid., p. 198 (Mr. Paul Reuter, 3 March 1962) – political
negotiations within the 1946 Conciliation commission; Mr. Roger Pinto
identified France’s affirmations of sove reignty as providing many occasions
on which Thailand should have protested ( ibid., pp. 507–514 (Mr. Roger
Pinto, 24 March 1962)).
111
Ibid., pp. 201–202 (Mr. Paul Reuter, 3 March 1962).

54 de Tokyo, j’ai mentionné que sous le nom de Préah
Vihéar se trouvait celui de ruines. En réalité, je ne
m’étais pas reporté, et j’ai eu tort, immédiatement, sur le

champ, à la carte. Ce n’est pas le mot de ruines qui se
trouve indiqué, c’est plus précisément celui de
temple.” 109

2.57 In the same vein, the other events allegedly implying

recognition by Thailand of Cam bodia’s sovereignty could only

apply to the Temple itself and were only invoked for that

purpose. This is the case in particular with Prince Damrong’s

visit in 1930, which was consid ered by Cambodia as a crucial
110
event for recognition purpose . The same obviously applies to
France’s protests of 1949 against Thailand having placed guards

in the Temple and Thailand’s silence on the matter 11.

2.58 The Parties’ pleadings e xplain the function of the

boundary line in the 1959-1962 proceedings: the documents

illustrating it (or rather them, since, as will be seen in the next

paragraphs, several lines were presented to the Court) were

109Ibid., pp. 184–185 (Mr. Roger Pinto, 2 March 1962).
110
Ibid., Réplique du Gouvernement Royal du Cambodge , Vol. I, pp. 464–
465, para. 55. For Thailand’s response, see ibid., Rejoinder of the Royal
Government of Thailand , p. 581, para. 73. For the oral pleadings, see also
ibid., Oral Arguments, Vol. II, pp. 189-190 (Mr. Roger Pinto, 3 March 1962)
and, in response for Thailand, ibid., pp. 312-313 (Sir Frank Soskice,
13 March 1962). For other examples when Thailand should have raised
reservations of sovereignty, see ibid., p. 198 (Mr. Paul Reuter, 3 March 1962)
(signature of an agreement of cooperation on archaeological matters between
France and Siam); ibid., p. 198 (Mr. Paul Reuter, 3 March 1962) – political
negotiations within the 1946 Conciliation commission; Mr. Roger Pinto
identified France’s affirmations of sove reignty as providing many occasions
on which Thailand should have protested ( ibid., pp. 507–514 (Mr. Roger
Pinto, 24 March 1962)).
111
Ibid., pp. 201–202 (Mr. Paul Reuter, 3 March 1962). 2.61 Thus, the 1949 French protests against the placement by

Thailand of guards in the Temple, while basing themselves both

on the Annex I map and on a map prepared by the Services

Géographiques Siamois, underlined:

“Les deux fragments de carte, française et siamoise, ne

sont pas rigoureusement superposables, ce qui n’a rien
de surprenant. Mais ils présentent une grande similitude.
Dans l’un comme dans l’autre, on reconnaît très bien les

vestiges des ruines de Préah Vihéar et 113a frontière qui
passe nettement au Nord à 500 mètres.”

This position was restated by Professor Pinto during the
hearings:

“Nous ne devons jamais perdre de vue en effet que la

frontière114sse à quelque 500 mètres au nord du
temple.”

This assertion seemed to surprise Sir Frank Soskice who

responded:

“On what principle Professor Pinto puts the boundary
there I do not know. The line on Annex I is very much
further north than that.” 115

The issue stopped there, since neither Mr. Pinto nor any other

Counsel for Cambodia gave further explanations. The

113I.C.J. Pleadings, Temple of Preah Vihear, “Note de l’Ambassade de
France à Bangkok en date du 9 mai 1949, N° 114/49”, Application,
Annex XVI, Vol. I, p. 106. (Emphasis added).

114Ibid., Oral Arguments, Vol. II, p. 189 (Mr. Roger Pinto, 2 March 1962).
(Emphasis added).
115
Ibid., p. 306 (Sir Frank Soskice, 12 March 1962).

562.61 Thus, the 1949 French protests against the placement by

Thailand of guards in the Temple, while basing themselves both

on the Annex I map and on a map prepared by the Services

Géographiques Siamois, underlined:

“Les deux fragments de carte, française et siamoise, ne
sont pas rigoureusement superposables, ce qui n’a rien

de surprenant. Mais ils présentent une grande similitude.
Dans l’un comme dans l’autre, on reconnaît très bien les
vestiges des ruines de Préah Vihéar et la frontière qui
113
passe nettement au Nord à 500 mètres.”

This position was restated by Professor Pinto during the
hearings:

“Nous ne devons jamais perdre de vue en effet que la

frontière 114se à quelque 500 mètres au nord du
temple.”

This assertion seemed to surprise Sir Frank Soskice who

responded:

“On what principle Professor Pinto puts the boundary
there I do not know. The line on Annex I is very much
115
further north than that.”

The issue stopped there, since neither Mr. Pinto nor any other

Counsel for Cambodia gave further explanations. The

113
I.C.J. Pleadings, Temple of Preah Vihear, “Note de l’Ambassade de
France à Bangkok en date du 9 mai 1949, N° 114/49”, Application,
Annex XVI, Vol. I, p. 106. (Emphasis added).
114
Ibid., Oral Arguments, Vol. II, p. 189 (Mr. Roger Pinto, 2 March 1962).
(Emphasis added).
115Ibid., p. 306 (Sir Frank Soskice, 12 March 1962). “After crossing Takhop Stream towards the stair-cases
leading up to the Temple we found a French reception

committee there. They had built a temporary shed of
attap roofing only large enough to bed down two or three
people. There was a flag pole in front of that shed with a
French flag flying.” 121

The hypothesis of a boundary passing immediately north of the

Temple was again restated by Professor Pinto in his pleadings:

“Et, rappelons-le, la montagne de Préah Vihéar, même
si le temple est du côté cambodgien de la frontière, n’est
pas tout entière sur le territoire cambodgien. Toute une
partie de cette montagne se trouve en territoire siamois,

puisque la frontière passe immédiatement au nord du 122
temple, d’après la carte même publiée en 1908.”

2.63 The lack of interest in the location of the Annex I line on

the ground (and, therefore, in the issue of delimitation as such),

is further highlighted by the f act that Cambodia did not deem it

necessary to answer the Thai ar gument that the plotting of such

a line was already considered in 1962 as raising insuperable
123
technical difficulties. The issue had been raised in the
124
Rejoinder and was further brought to the Judges’ attention

during the oral pleadings, as Mr. Rolin for instance, repeatedly

did:

121
I.C.J. Pleadings, Temple of Preah Vihear, “Affidavit by M.C. Phun
Phitsamai Diskul, dated 9 June 1961”, Counter-Memorial of the Royal
Government of Thailand, Annex 39f, Vol. I, p. 402.
122
Ibid., Oral Arguments, Vol. II, p. 182 (Mr. Roger Pinto, 2 March 1962).
(Emphasis added).
123This is still the case at present. See paras. 6.10-6.17 below.
124
I.C.J. Pleadings, Temple of Preah Vihear, Rejoinder of the Royal
Government of Thailand, Vol. I, pp. 597–598.

58 “After crossing Takhop Stream towards the stair-cases

leading up to the Temple we found a French reception
committee there. They had built a temporary shed of
attap roofing only large enough to bed down two or three
people. There was a flag pole in front of that shed with a
121
French flag flying.”

The hypothesis of a boundary passing immediately north of the
Temple was again restated by Professor Pinto in his pleadings:

“Et, rappelons-le, la montagne de Préah Vihéar, même
si le temple est du côté cambodgien de la frontière, n’est

pas tout entière sur le territoire cambodgien. Toute une
partie de cette montagne se trouve en territoire siamois,
puisque la frontière passe immédiatement au nord du
temple, d’après la carte même publiée en 1908.” 122

2.63 The lack of interest in the location of the Annex I line on

the ground (and, therefore, in the issue of delimitation as such),

is further highlighted by the f act that Cambodia did not deem it

necessary to answer the Thai ar gument that the plotting of such

a line was already considered in 1962 as raising insuperable
technical difficulties. 123The issue had been raised in the

Rejoinder 124and was further brought to the Judges’ attention

during the oral pleadings, as Mr. Rolin for instance, repeatedly

did:

121
I.C.J. Pleadings, Temple of Preah Vihear, “Affidavit by M.C. Phun
Phitsamai Diskul, dated 9 June 1961”, Counter-Memorial of the Royal
Government of Thailand, Annex 39f, Vol. I, p. 402.
122Ibid., Oral Arguments, Vol. II, p. 182 (Mr. Roger Pinto, 2 March 1962).
(Emphasis added).
123
This is still the case at present. See paras. 6.10-6.17 below.
124 I.C.J. Pleadings, Temple of Preah Vihear, Rejoinder of the Royal
Government of Thailand, Vol. I, pp. 597–598. interpréter cette carte, nous devons donc nous
conformer à ce qui existe sur le terrain.

Dans ce dernier cas, Phra Viharn restera à la
Thaïlande.

Dans le premier cas, si nous devons faire le report
mathématique, nous perdrons Phra Viharn.” 125

Professor Rolin insisted upon Cambodia’s silence with regard to

these difficulties and upon the interpretation of this silence as

implying that Cambodia was only concerned with sovereignty

over the Temple and not with the delimitation in the region:

“Mais nous avons déjà rendu la Cour attentive dans
notre procédure écrite sur le fait que si l’on adoptait

cette solution-là, étant donné l’inexactitude qui existe,
non pas seulement en cet endroit-là, mais en d’autres
endroits de la carte annexe I, nous allions avoir une
frontière qui sans doute à certains endroits nous
enlèverait de larges morceaux du plateau, mais qui en

d’autres endroits descendrait hardiment de la falaise
pour enlever au Cambodge de larges morceaux de la
plaine cambodgienne. Extraordinaire frontière! Nous
l’avons indiquée telle qu’elle nous apparaît, telle que nos
experts l’ont tracée et, à not re grande surprise, on ne
nous a rien répondu. Nous avons interprété ce silence

comme étant l’indication que nos adversaires ne
voulaient pas se laisser entraîner au-delà de Phra Viharn,
et que tout en ayant invoqué la frontière de l’annexe I, ils
se refusaient à tirer d’autres conséquences de ce
principe que celles concernant le temple.

Mais du moment qu’ils vous demandent une
consécration officielle de toute la frontière des Dangrek,

125Ibid., Oral Arguments, Vol. II, pp. 267–268 (Mr. Henri Rolin, 8 March
1962). (Emphasis added).

60 interpréter cette carte, nous devons donc nous

conformer à ce qui existe sur le terrain.

Dans ce dernier cas, Phra Viharn restera à la
Thaïlande.

Dans le premier cas, si nous devons faire le report
mathématique, nous perdrons Phra Viharn.” 125

Professor Rolin insisted upon Cambodia’s silence with regard to

these difficulties and upon the interpretation of this silence as

implying that Cambodia was only concerned with sovereignty

over the Temple and not with the delimitation in the region:

“Mais nous avons déjà rendu la Cour attentive dans
notre procédure écrite sur le fait que si l’on adoptait

experts l’ont tracée et, à not re grande surprise, on ne
nous a rien répondu. Nous avons interprété ce silence
comme étant l’indication que nos adversaires ne
voulaient pas se laisser entraîner au-delà de Phra Viharn,
et que tout en ayant invoqué la frontière de l’annexe I, ils

se refusaient à tirer d’autres conséquences de ce
principe que celles concernant le temple.

Mais du moment qu’ils vous demandent une

consécration officielle de toute la frontière des Dangrek,

125Ibid., Oral Arguments, Vol. II, pp. 267–268 (Mr. Henri Rolin, 8 March
1962). (Emphasis added). consequential request for withdrawal of Thai troops from the
Temple (introduced as Cambodia’s first submission):

“For these reasons,

The submissions of the Kingdom of Cambodia are as
follows:

May it please the Court to adjudge and declare, whether
the Kingdom of Thailand appears or not:

(I) that the Kingdom of Thaila nd is under an obligation

to withdraw the detachments of armed forces it has
stationed since 1954 in the ruins of the Temple of Preah
Vihear;

(2) that the territorial sovereignty over the Temple of 128
Preah Vihear belongs to the Kingdom of Cambodia.”

2.67 Thailand’s research for documents and its response were

therefore tailored to prove th e unsoundness of these claims. Its

own submissions were merely drafted defensively:

“For these reasons

the Government of Thailand submits:

(1) that the claims of the Kingdom of Cambodia
formulated in the Application and the Memorial are not
sustainable and should be rejected:

(2) that Phra Viharn is in Thai territory: and the129urt is
respectfully asked so to adjudge and declare.”

128Ibid., Application, Vol. I, p. 15. See also ibid., Mémoire du Gouvernement
Royal du Cambodge, p. 119; ibid., Réplique du Gouvernement du Cambodge,
p. 475.
129
Ibid., Counter-Memorialof the Royal Government of Tha, Vol. I, p. 198.

62consequential request for withdrawal of Thai troops from the

Temple (introduced as Cambodia’s first submission):

“For these reasons,

The submissions of the Kingdom of Cambodia are as

follows:

May it please the Court to adjudge and declare, whether
the Kingdom of Thailand appears or not:

(I) that the Kingdom of Thaila nd is under an obligation
to withdraw the detachments of armed forces it has
stationed since 1954 in the ruins of the Temple of Preah

Vihear;

(2) that the territorial sovereignty over the Temple of
Preah Vihear belongs to the Kingdom of Cambodia.” 128

2.67 Thailand’s research for documents and its response were

therefore tailored to prove th e unsoundness of these claims. Its

own submissions were merely drafted defensively:

“For these reasons

the Government of Thailand submits:

(1) that the claims of the Kingdom of Cambodia

formulated in the Application and the Memorial are not
sustainable and should be rejected:

(2) that Phra Viharn is in Thai territory: and the Court is
129
respectfully asked so to adjudge and declare.”

of Cambodia’s new claims, but on different grounds: while for

the latter rather formal opposition was raised on the basis of its
133
tardiness ; for the former, Thailand’s opposition was
substantial, considering it actually implied a change of the

subject matter of the dispute. This was affirmed by Mr. Pramoj,

Counsel for Thailand:

“It clearly appears from the pleadings just quoted that

the subject of the dispute in this case instituted by
Cambodia concerns only the Temple of Phra Viharn. It
is further alleged that Thailand occupied the Temple
with her armed forces, th e implication being that
Thailand has thereby depriv ed Cambodians of a sacred
place of pilgrimage and worship. This sacred place of

pilgrimage and worship occupies only a portion of
Cambodian territory situated in the province of
Kompong Thom. With these terms of reference, the
claim put forward by Cambodia can only be for the
Temple grounds and not for the entire border on the

Dangrek range of mountains as claimed in Cambodia’s
latest submission.

It also appears clearly from the same pleadings just
quoted that the nature of th e claim precisely stated by
Cambodia in the Application and Memorial only

concerns the withdrawal of Thai armed forces from the
Temple of Phra Viharn and the declaration by the Court
of the territorial sovere ignty of the Kingdom of
Cambodia over the Temple of Phra Viharn.

But now, in the latest submissions made by the Agent for
the Government of Cambodia, the claims the
Government of Cambodia have been enlarged beyond

133I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments, Vol. II, p. 217
(Mr. Seni Pramoj, 7 March 1962).

64claims. This opposition concerned both the first and the fourth

of Cambodia’s new claims, but on different grounds: while for

the latter rather formal opposition was raised on the basis of its
133
tardiness ; for the former, Thailand’s opposition was

substantial, considering it actually implied a change of the

subject matter of the dispute. This was affirmed by Mr. Pramoj,
Counsel for Thailand:

“It clearly appears from the pleadings just quoted that
the subject of the dispute in this case instituted by

Cambodia concerns only the Temple of Phra Viharn. It
is further alleged that Thailand occupied the Temple
with her armed forces, th e implication being that
Thailand has thereby depriv ed Cambodians of a sacred
place of pilgrimage and worship. This sacred place of

Dangrek range of mountains as claimed in Cambodia’s
latest submission.

It also appears clearly from the same pleadings just

quoted that the nature of th e claim precisely stated by
Cambodia in the Application and Memorial only
concerns the withdrawal of Thai armed forces from the
Temple of Phra Viharn and the declaration by the Court
of the territorial sovere ignty of the Kingdom of

Cambodia over the Temple of Phra Viharn.

But now, in the latest submissions made by the Agent for
the Government of Cambodia, the claims the

Government of Cambodia have been enlarged beyond

133I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments, Vol. II, p. 217
(Mr. Seni Pramoj, 7 March 1962). 2.71 Not surprisingly, Thailand’s submissions at the end of its

first round of oral pleadings were directed mainly at having
Cambodia’s first and fourth subm issions declared inadmissible,

and for the two other submissions to be rejected:

“Mr. President, Members of the Court, with respect to
the submission presented by the Government of
Cambodia on 5 March 1962, the Government of
Thailand respectfully presents the following as its

submission to the Court:

I. The Court is asked not to entertain the claims put
forward by Cambodia in paragraphs 1 and 4 of their
submissions presented on Monday, 5 March, by the
Agent for the Government of Cambodia, on the ground
that both those claims are put forward too late and were

not included as claims which the Government of
Cambodia wished to present to the Court in their
Application instituting these proceedings or in the course
of the written pleadings, and were for the first time put
forward by the Agent for Cambodia when he formulated
Cambodia's conclusions.

It is therefore submitted that these claims should not now
be entertained by the Court.

2. Alternatively:

In regard to the first of the said claims, Thailand submits
the following conclusions:

(i) The map Annex I has not been proved to be a
document binding on the Parties whether by virtue of the
Treaty of 1904 or otherwise.
(ii) Thailand and Cambodia have not in fact treated the
frontier marked out on Annex I as the frontier between
Thailand and Cambodia in the Dang Rek region.

(iii) For the above reasons, the frontier line marked on
Annex I ought not to be substituted for the existing

662.71 Not surprisingly, Thailand’s submissions at the end of its

first round of oral pleadings were directed mainly at having
Cambodia’s first and fourth subm issions declared inadmissible,

and for the two other submissions to be rejected:

“Mr. President, Members of the Court, with respect to
the submission presented by the Government of
Cambodia on 5 March 1962, the Government of
Thailand respectfully presents the following as its

submission to the Court:

It is therefore submitted that these claims should not now
be entertained by the Court.

2. Alternatively:

In regard to the first of the said claims, Thailand submits
the following conclusions:

(iii) For the above reasons, the frontier line marked on
Annex I ought not to be substituted for the existing (vii) The evidence in favour of Cambodia is, in any
event, wholly inadequate to support any prescriptive title

in Cambodia.

Cambodia’s second and third submissions ought
therefore to be rejected.

4. Further, and in the alternative with regard to

Cambodia’s fourth submission, it is submitted that this
submission, even if entertained by the Court, is wholly
unsupported by evidence, and the claim put forward by
Cambodia in its fourth submission is accordingly
unsustainable.” 138

2.72 In its final submissions, put to the Court before the

second round of oral pleadings, Cambodia changed yet again

their formulation. However, this change, while expanding again

the original claims, introduced further uncertainty since it used
concepts that were neither de fined during the proceedings nor

had a precise meaning:

“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 and on behalf of the

Mixed Delimitation Commission set up by the Treaty of
13 February 1904, 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 between Indo-China and Siam (Annex I to
the Memorial of Cambodia);

138I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments, Vol. II,
pp. 439–441 (Mr. Vongsamahip Jayankura, 20 March 1962).

68 (vii) The evidence in favour of Cambodia is, in any

event, wholly inadequate to support any prescriptive title
in Cambodia.

Cambodia’s second and third submissions ought
therefore to be rejected.

4. Further, and in the alternative with regard to
Cambodia’s fourth submission, it is submitted that this
submission, even if entertained by the Court, is wholly
unsupported by evidence, and the claim put forward by

Cambodia in its 138rth submission is accordingly
unsustainable.”

2.72 In its final submissions, put to the Court before the

second round of oral pleadings, Cambodia changed yet again
their formulation. However, this change, while expanding again

the original claims, introduced further uncertainty since it used

concepts that were neither de fined during the proceedings nor

had a precise meaning:

“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 and on behalf of the
Mixed Delimitation Commission set up by the Treaty of
13 February 1904, 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 between Indo-China and Siam (Annex I to
the Memorial of Cambodia);

138I.C.J. Pleadings, Temple of Preah Vihear, Oral Arguments, Vol. II,
pp. 439–441 (Mr. Vongsamahip Jayankura, 20 March 1962). 2.74 Thailand’s revised submissions , naturally drafted in the

light of Cambodia’s latest submissions, asked the Court to reject
the claim on the status of the Annex I map. Thailand also

requested the Court to decide that the claim on delimitation and

the claim on the restitution of cultural objects were

inadmissible, and to dismiss th e claim for sovereignty over the
Temple:

“I. With regard to the first claim of the revised
Submissions:
1. The whole of the evidence before the Court

shows that the map of the sector of the Dang Rek which
is Annex I to the Memorial of Cambodia was not
prepared or published either in the name or on behalf of
the Mixed Commission of De limitation set up under the
Treaty of 13 February, 1904; but, whereas the said
Mixed Commission consisted of a French Commission
and a Siamese Commission, the said Annex I was

prepared by members of the French Commission alone
and published only in the name of the French
Commission.
2. The French officers who prepared the said
Annex I had no authority to give any official or final
interpretation of the decisions of the said Mixed
Commission at points at which no decision had been

recorded.
3. No decision of the said Mixed Commission
was recorded about the boundary at Phra Viharn. If the
said Mixed Commission did r each such a decision, that
decision is not correctly represented on the said Annex I,
but was a decision that in the Phra Viharn area the
boundary should coincide with the cliff edge.

4. There was no subsequent agreement of the
parties attributing a bilateral or conventional character to
the said Annex I.
5. The conduct of the parties, so far from
attributing any conventional character to the said
Annex I, shows that the part ies have not treated the line

702.74 Thailand’s revised submissions , naturally drafted in the

light of Cambodia’s latest submissions, asked the Court to reject
the claim on the status of the Annex I map. Thailand also

requested the Court to decide that the claim on delimitation and

the claim on the restitution of cultural objects were

inadmissible, and to dismiss th e claim for sovereignty over the
Temple:

“I. With regard to the first claim of the revised
Submissions:
1. The whole of the evidence before the Court

and third claims of the revised Submissions must involve
the rejection of this claim.
3. Alternatively, this claim should be restricted to
any objects of the kinds specified in the claim proved by
the evidence before the Court to have been removed
141
from the temple since 1954 by the Thai authorities.”

2.75 During the second round of oral pleadings, Thailand’s
Counsel further explained w hy any claim relating to

delimitation had to be declared inadmissible. Mr. Rolin stressed

again that transforming the dispute submitted in the Application

was impermissible:

“Il a tant été question de ca rtes dans cette affaire que

l’on semble avoir perdu de vue, du côté cambodgien,
quel était réellement l’objet de leur demande. Cet objet
n’est assurément pas la rectification des cartes
thaïlandaises; c’est avant tout l’adjudication d’un
territoire.

On se pose la question, que maître Seni Pramoj a
développée avec force au début de son intervention hier,
de savoir quel territoire. Dans la procédure écrite, il
s’agissait du temple de Phra Viharn, les bâtiments, et,

j’imagine, de l’allée conduisant à l’escalier qui descend
le long de la falaise sur la plaine du Cambodge.

Déjà nous avions remarqué - et M. Seni Pramoj l’avait
fait observer dans sa première plaidoirie – que
M. l’agent du Cambodge av ait, dans ses premières

remarques, employé une exp ression qui marquait un
élargissement lorsqu’il avait réclamé la région de Phra
Viharn.

141See I.C.J. Pleadings, Temple of Preah Vihear, “Letter of the Agent of the
Government of Thailand to the Registrar, 20 March 196Correspondence,
No. 187, Vol. II, pp. 785–786.

72 2. Alternatively, the rejection of the first, second
and third claims of the revised Submissions must involve

the rejection of this claim.
3. Alternatively, this claim should be restricted to
any objects of the kinds specified in the claim proved by
the evidence before the Court to have been removed
from the temple since 1954 by the Thai authorities.” 141

2.75 During the second round of oral pleadings, Thailand’s

Counsel further explained w hy any claim relating to

delimitation had to be declared inadmissible. Mr. Rolin stressed

again that transforming the dispute submitted in the Application
was impermissible:

“Il a tant été question de ca rtes dans cette affaire que
l’on semble avoir perdu de vue, du côté cambodgien,
quel était réellement l’objet de leur demande. Cet objet
n’est assurément pas la rectification des cartes

thaïlandaises; c’est avant tout l’adjudication d’un
territoire.

On se pose la question, que maître Seni Pramoj a
développée avec force au début de son intervention hier,
de savoir quel territoire. Dans la procédure écrite, il

s’agissait du temple de Phra Viharn, les bâtiments, et,
j’imagine, de l’allée conduisant à l’escalier qui descend
le long de la falaise sur la plaine du Cambodge.

Déjà nous avions remarqué - et M. Seni Pramoj l’avait

fait observer dans sa première plaidoirie – que
M. l’agent du Cambodge av ait, dans ses premières
remarques, employé une exp ression qui marquait un
élargissement lorsqu’il avait réclamé la région de Phra
Viharn.

141See I.C.J. Pleadings, Temple of Preah Vihear, “Letter of the Agent of the
Government of Thailand to the Registrar, 20 March 196Correspondence,
No. 187, Vol. II, pp. 785–786. Phra Viharn is that which is marked on the map Annex I.
The words now used are ‘ region in the vicinity of the
Temple’. In my submission, Mr. President, Members of
the Court, this is even more ambiguous. The word

‘region’ with its inherent lack of precision is again used,
and we have an innovation in the use of the word
‘vicinity’”143 .

2.77 Besides its concern about the vagueness of Cambodia’s
144
territorial claim , Thailand repeated its concerns about

Cambodia claiming a line outside the strict area of the Temple.

Mr. Rolin thus came back on how much at odds with the reality
145
on the ground the Annex I line would be . He stressed again
that such plotting would result in a new boundary, differing

considerably from the one the Parties had observed:

“Même si le Cambodge veut bien préciser quel est

l’objet limité de sa demande, la portion limitée de
territoire qu’il réclame, de l’avis de la Thaïlande la
thèse défendue par le Cambodge continue à contenir en
elle une menace dont les répercussions doivent, si elles

étaient acceptées, inévitablement entraîner entre les
deux pays de graves complications et être une source
d’insécurité.

En effet, nous lisons encore dans les dernières

conclusions du royaume du Cambodge qu’il est demandé
de dire et juger que la carte du secteur de Dangrek a été
dressée et publiée au nom et pour compte de la
Commission mixte de délimitation créée par le traité de

13 février 1904, qu’elle énonce des décisions prises par
ladite Commission mixte et qu’elle présente tant de ce

143
Ibid., p. 559 (Mr. Seni Pramoj, 27 March 1962). (Emphasis in the
original).
14On this point, see also ibid., p. 567 (Mr. Henri Rolin, 28 March 1962).
145
See para. 2.70 above.

74 Phra Viharn is that which is marked on the map Annex I.
The words now used are ‘ region in the vicinity of the
Temple’. In my submission, Mr. President, Members of

the Court, this is even more ambiguous. The word
‘region’ with its inherent lack of precision is again used,
and we have an innovation in the use of the word
‘vicinity’” 143.

2.77 Besides its concern about the vagueness of Cambodia’s

territorial claim 14, Thailand repeated its concerns about

Cambodia claiming a line outside the strict area of the Temple.

Mr. Rolin thus came back on how much at odds with the reality
145
on the ground the Annex I line would be . He stressed again

that such plotting would result in a new boundary, differing

considerably from the one the Parties had observed:

“Même si le Cambodge veut bien préciser quel est
l’objet limité de sa demande, la portion limitée de
territoire qu’il réclame, de l’avis de la Thaïlande la

thèse défendue par le Cambodge continue à contenir en
elle une menace dont les répercussions doivent, si elles
étaient acceptées, inévitablement entraîner entre les
deux pays de graves complications et être une source

d’insécurité.

En effet, nous lisons encore dans les dernières
conclusions du royaume du Cambodge qu’il est demandé

de dire et juger que la carte du secteur de Dangrek a été
dressée et publiée au nom et pour compte de la
Commission mixte de délimitation créée par le traité de
13 février 1904, qu’elle énonce des décisions prises par

ladite Commission mixte et qu’elle présente tant de ce

143
Ibid., p. 559 (Mr. Seni Pramoj, 27 March 1962). (Emphasis in the
original).
144On this point, see also ibid., p. 567 (Mr. Henri Rolin, 28 March 1962).
145
See para. 2.70 above. decisions of the Commission of Delimitation established under
the 1907 Treaty 14, or contravene a subsequent tacit agreement

between Thailand and Cambodia 15. He then concluded:

“Et alors, je vous pose la question, et c’est l’objet de ma

démonstration, si telle est la situation, est-ce qu’il est
raisonnable d’aller demander à la Cour, fût-ce dans un
dire pour droit théorique, d’investir d’une sorte de
caractère sacro-saint conventionnel, sur toute l'étendue

de la frontière des Dangrek, cette ligne frontière
indiquée dans la carte annexe I?

Je pose la question: de la Thaïlande ou du Cambodge,

quel est celui des deux État s dont l’attitude, dans ce
procès, pourrait être une cause d’insécurité et
d’instabilité pour une frontière qui, à part Phra Viharn,
n’a jamais donné lieu, depui s cinquante ans, à aucune
difficulté?”151

2.79 What Mr. Rolin underlined was the fact that, outside
Phra Viharn, the Parties had not engaged before the Court in

argument that would allow the Court to identify the respective

claims of the Parties, the factual situation, the geographical and

human reality, or the t echnical feasibility of the transposition of

the line, all matters of paramount importance for delimitation.

C. Conclusion

2.80 In line with the positions of the Parties concerning the

subject matter of the dispute as expressed,

149
Ibid., Oral Arguments, Vol. II, p. 571 (Mr. Henri Rolin, 28 March 1962).
15Ibid., p. 570.
151
Ibid., p. 573. (Emphasis in the original).

76decisions of the Commission of Delimitation established under

the 1907 Treaty 149, or contravene a subsequent tacit agreement

between Thailand and Cambodia 150. He then concluded:

“Et alors, je vous pose la question, et c’est l’objet de ma
démonstration, si telle est la situation, est-ce qu’il est

raisonnable d’aller demander à la Cour, fût-ce dans un
dire pour droit théorique, d’investir d’une sorte de
caractère sacro-saint conventionnel, sur toute l'étendue
de la frontière des Dangrek, cette ligne frontière
indiquée dans la carte annexe I?

Je pose la question: de la Thaïlande ou du Cambodge,
quel est celui des deux État s dont l’attitude, dans ce
procès, pourrait être une cause d’insécurité et

d’instabilité pour une frontière qui, à part Phra Viharn,
n’a jamais donné lieu, depui s cinquante ans, à aucune
difficulté?”151

2.79 What Mr. Rolin underlined was the fact that, outside

Phra Viharn, the Parties had not engaged before the Court in

argument that would allow the Court to identify the respective

claims of the Parties, the factual situation, the geographical and
human reality, or the t echnical feasibility of the transposition of

the line, all matters of paramount importance for delimitation.

C. Conclusion

2.80 In line with the positions of the Parties concerning the

subject matter of the dispute as expressed,

149Ibid., Oral Arguments, Vol. II, p. 571 (Mr. Henri Rolin, 28 March 1962).
150Ibid., p. 570.

151Ibid., p. 573. (Emphasis in the original).78 CHAPTER III

THE MEANING AND SCOPE OF THE 1962 JUDGMENT

A. Introduction

3.1 In its Judgment of 15 June 1962 on the merits of the

dispute, the Court responded to the specific questions raised by

Cambodia in its original application – sovereignty over the

Temple and withdrawal of Thai military personnel from the

ruins of the Temple – and added a further matter, the return of
“sculptures, stelae, fragments of monuments, sandstone model

and ancient pottery” 152(hereafter referred to as “cultural

objects”), something raised by Cambodia in the course of the

proceedings. The attempt by Cambodia to broaden the issue

before the Court to a determin ation of the boundary between
Cambodia and Thailand and make a ruling about the status of

the line on the Annex I map, was specifically rejected by the

Court.

3.2 The language used by the Court in describing the dispute

and in defining the area to which its decision related was simply

a continuation of what it had said in the preliminary objections

phase. The scope of the dispute was narrow. The area that the

Court focused on was circumscribed. The Court used terms that
confined what it was deciding to the Temple itself, which

included the ground on which the Temple lay, exemplified by

152Case Concerning the Temple of Preah Vihear (Cambodiav. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports1962, pp.10 and 11.

79 the use of terms such as “Temple area” and the “vicinity” of the

Temple. The phrase found in the second operative paragraph,

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

which Cambodia’s Request for interpretation hinges, does not
bear the expansive meaning that Cambodia now wishes to

ascribe to it. The central question for the Court was sovereignty

over the Temple, and maps were used to assist the Court in

deciding in whose territory the Temple lay, but explicitly they
were not used for the purpose of making a determination about

the boundary between the Parties. In this regard, it is significant

that the Court did not attach any map to its Judgment and it only

requested the reproduction of the Annex I map with the
pleadings. It did not include any modern map accurately

reproducing the topographical reality 153.

3.3 A reading of the 1962 Judgment shows that whenever

the Court in 1962 referred to the “area of the Temple”, “the
Temple area”, or “the vicinity of the Temple”, it was not

referring to the whole area to which the Annex I line related.

The Court’s wording when it formulated operative paragraph 2

of the dispositif was precise and clear. It was talking about the
Temple itself and the vicinity of the Temple. The words used

were a direct response to the request that Cambodia had then

made. They were not a response to what Cambodia now claims.

3.4 The analysis that follows demonstrates the narrow scope

153See also para. 5.25 and, in particular, footnote 457 below.

80the use of terms such as “Temple area” and the “vicinity” of the
Temple. The phrase found in the second operative paragraph,

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

which Cambodia’s Request for interpretation hinges, does not

bear the expansive meaning that Cambodia now wishes to

ascribe to it. The central question for the Court was sovereignty

over the Temple, and maps were used to assist the Court in

deciding in whose territory the Temple lay, but explicitly they
were not used for the purpose of making a determination about

the boundary between the Parties. In this regard, it is significant

that the Court did not attach any map to its Judgment and it only

requested the reproduction of the Annex I map with the

pleadings. It did not include any modern map accurately
153
reproducing the topographical reality .

3.3 A reading of the 1962 Judgment shows that whenever

the Court in 1962 referred to the “area of the Temple”, “the

Temple area”, or “the vicinity of the Temple”, it was not

referring to the whole area to which the Annex I line related.

The Court’s wording when it formulated operative paragraph 2

of the dispositif was precise and clear. It was talking about the

Temple itself and the vicinity of the Temple. The words used
were a direct response to the request that Cambodia had then

made. They were not a response to what Cambodia now claims.

3.4 The analysis that follows demonstrates the narrow scope

153See also para. 5.25 and, in particular, footnote 457 below. This was a rewording of the fourth final submission of

Cambodia, which had asked the Court to declare that Thailand

was:

“under an obligation to wit hdraw the detachments of

armed forces it has stati oned, since 1954, in Cambodian 157
territory, in the ruins of the Temple of Preah Vihear” .

The Court said little about this second paragraph of the

dispositif, noting that:

“it also finds in favour of Cambodia as regards the fourth
Submission concerning th e withdrawal of the
detachments of armed forces” 158.

Thus, the second operative paragraph of the dispositif was,

according to the Court, simply giving effect to the submission of

Cambodia.

3.8 Third, the Court decided that Thailand was:

“under an obligation to rest ore to Cambodia any objects

of the kind specified in Cambodia's fifth Submission
which may, since the date of the occupation of the
Temple by Thailand in 1954, have been removed from
159
the Temple or the Temple area” .

157
Ibid., p. 37.
158Ibid., p. 36.
159
Ibid., p. 37.

82This was a rewording of the fourth final submission of

Cambodia, which had asked the Court to declare that Thailand

was:

“under an obligation to wit hdraw the detachments of

armed forces it has stati oned, since 1954, in Cambodian 157
territory, in the ruins of the Temple of Preah Vihear” .

The Court said little about this second paragraph of the

dispositif, noting that:

“it also finds in favour of Cambodia as regards the fourth
Submission concerning th e withdrawal of the
detachments of armed forces” 15.

Thus, the second operative paragraph of the dispositif was,

according to the Court, simply giving effect to the submission of

Cambodia.

3.8 Third, the Court decided that Thailand was:

“under an obligation to rest ore to Cambodia any objects

of the kind specified in Cambodia's fifth Submission
which may, since the date of the occupation of the
Temple by Thailand in 1954, have been removed from
159
the Temple or the Temple area” .

157
Ibid., p. 37.
158Ibid., p. 36.
159
Ibid., p. 37. to the fourth and fifth submissi ons. But even if not requested,

they would have followed as a matter of course. It was for this

reason that the Court saw no difficulty in responding to the fifth

submission, even though it was not part of the original

submissions of Cambodia. It could not represent any extension
of Cambodia’s claim because it was the inevitable consequence

of the claim to sovereignty.

3.11 Not only did the Court decide just one thing, it explicitly

declined to go further. In the course of the proceedings, on
163
5 March 1962, Cambodia added a new first submission ,

asking the Court:

“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 a164Siam (Annex I to
the Memorial of Cambodia).”

In short, Cambodia wanted the Court to rule that the line on the

Annex I map was the boundary between the Parties.

165
3.12 In its Final Submissions, on 20 March 1962 ,

Cambodia added a further submission asking the Court:

“To adjudge and declare that the map of the Dangrek

163See paras. 2.35-2.39 above.

164Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports1962, p.10.
165
See paras. 2.68-2.70 above.

84to the fourth and fifth submissi ons. But even if not requested,
they would have followed as a matter of course. It was for this

reason that the Court saw no difficulty in responding to the fifth

submission, even though it was not part of the original

submissions of Cambodia. It could not represent any extension

of Cambodia’s claim because it was the inevitable consequence

of the claim to sovereignty.

3.11 Not only did the Court decide just one thing, it explicitly

declined to go further. In the course of the proceedings, on

5 March 1962, Cambodia added a new first submission 163,

asking the Court:

“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
164
the Memorial of Cambodia).”

In short, Cambodia wanted the Court to rule that the line on the

Annex I map was the boundary between the Parties.

3.12 In its Final Submissions, on 20 March 1962 165,

Cambodia added a further submission asking the Court:

“To adjudge and declare that the map of the Dangrek

163
See paras. 2.35-2.39 above.
164Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports1962, p.10.
165
See paras. 2.68-2.70 above. C. The Narrow Scope of the Dispute as Defined by the Court

3.14 In setting out its view of what constituted the dispute
that it had to decide, the Court made clear that it was the narrow

question of sovereignty over the Temple that was at issue, and

not a broader question of the stat us of the boundary or of the

Annex I map or line. It conti nued to view the dispute in the

narrow terms in which it had seen it at the preliminary

objections phase and thus refused to rule on the submissions of

Cambodia that were predicated on an expanded mandate of the

Court.

1.THE L INK WITH THE JUDGMENT OF THE C OURT ON

PRELIMINARY OBJECTIONS

3.15 At the preliminary objections phase, the Court defined

the dispute as “territorial s overeignty over the region of the
167
Temple of Preah Vihear and its precincts” . In its Judgment

on the merits, the Court quoted what it had said in its Judgment
on preliminary objections and, appa rently encapsulating what it

had there said, went on to say:

“Accordingly, the subject of the dispute submitted to the
Court is confined to a difference of view about

sovereig168 over the region of the Temple of Preah
Vihear.”

167See paras. 2.14-2.17 above.
168
Case Concerning the Temple of Preah Vihear (Cambodv. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Rep1962, p. 14. (Emphasis
added).

86C. The Narrow Scope of the Dispute as Defined by the Court

3.14 In setting out its view of what constituted the dispute

that it had to decide, the Court made clear that it was the narrow

question of sovereignty over the Temple that was at issue, and

not a broader question of the stat us of the boundary or of the

Annex I map or line. It conti nued to view the dispute in the

narrow terms in which it had seen it at the preliminary
objections phase and thus refused to rule on the submissions of

Cambodia that were predicated on an expanded mandate of the

Court.

1. THE L INK WITH THE JUDGMENT OF THE COURT ON

P RELIMINARY O BJECTIONS

3.15 At the preliminary objections phase, the Court defined

the dispute as “territorial s overeignty over the region of the

Temple of Preah Vihear and its precincts” 16. In its Judgment

on the merits, the Court quoted what it had said in its Judgment

on preliminary objections and, appa rently encapsulating what it

had there said, went on to say:

“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.” 168

16See paras. 2.14-2.17 above.

168Case Concerning the Temple of Preah Vihear (Cambov. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Re1962, p. 14. (Emphasis
added). sovereignty. They could be taken into account as reasons for

the Court’s decision, but they coul d not themselves give rise to

matters that had to be determined. The Court was only deciding

the “sole dispute submitted to it”– the question of sovereignty
over the Temple and its precincts.

3.19 It is no surprise, therefore, that the Court in 1962 was not

prepared to respond to the first and second final submissions of
Cambodia. In stating that it c ould not give expression to these

submissions “as claims to be dealt with in the operative

provisions of the Judgment” th e Court said it was “for the

reasons indicated earlier at the beginning of the present
Judgment” 17, drawing a direct link with its explanation that the

frontier line and maps were releva nt only to the extent that they

could throw light on the question of sovereignty over the

Temple and its precincts. In other words, a ruling about the

status of the Annex I map or of the line contained within it, would
have been simply outside of the scope of the Court’s mandate.

They were not part of the“sole dispute submitted to it”.

3.20 In drawing its conclusions before making its findings,
the Court further emphasizes what it regards as the “sole

dispute” submitted to it. Twice it refers to the dispute as

“sovereignty over Preah Vihear”, saying definitively in the form

of a summing up:

170Ibid., p. 36.

88sovereignty. They could be taken into account as reasons for

the Court’s decision, but they coul d not themselves give rise to

matters that had to be determined. The Court was only deciding

the “sole dispute submitted to it”– the question of sovereignty

over the Temple and its precincts.

3.19 It is no surprise, therefore, that the Court in 1962 was not

prepared to respond to the first and second final submissions of

Cambodia. In stating that it c ould not give expression to these

submissions “as claims to be dealt with in the operative
provisions of the Judgment” th e Court said it was “for the

reasons indicated earlier at the beginning of the present
170
Judgment” , drawing a direct link with its explanation that the

frontier line and maps were releva nt only to the extent that they

could throw light on the question of sovereignty over the
Temple and its precincts. In other words, a ruling about the

status of the Annex I map or of the line contained within it, would

have been simply outside of the scope of the Court’s mandate.

They were not part of the“sole dispute submitted to it”.

3.20 In drawing its conclusions before making its findings,

the Court further emphasizes what it regards as the “sole

dispute” submitted to it. Twice it refers to the dispute as

“sovereignty over Preah Vihear”, saying definitively in the form
of a summing up:

170Ibid., p. 36. 3. THE SCOPE AND C ONTENT OF THE D ISPOSITIFW AS

C IRCUMSCRIBED BY THE PETITUM

3.22 In delivering its judgment, a court cannot go beyond the

claims of the Parties and award a Party something that it did not
request (the non ultra petita rule)7. As Judge Buergenthal said

in his Separate Opinion in the Oil Platforms case:

“a cardinal rule governing the Court's judicial process,
which does not allow the Court to deal with a subject in

the dispositif of its Judgment that the parties to the case
have not, in their final submissions, asked it to
adjudicate”174.

In saying this, Judge Buergentha l was simply reiterating what

was said by the Court in the Asylum Case in the following

terms:

“it is the duty of the Court not only to reply to the
questions as stated in the final submissions of the parties,

but also to abstain175om d eciding points not included in
those submissions” .

3.23 In short, what the Court decided in 1962 in each of the

operative paragraphs of the dispositif can extend no further than

what Cambodia requested. As a result, the three conclusions

173Arrest Warrant of 11 April 2000 (Democratic Republic of the Cv.go
Belgium), Judgment, I.C.J. Reports 2002, pp. 18-19, para. 43.

174Oil Platforms (Islamic Republic of IranUnited States of America),
I.C.J. Reports 2003, pp. 270-271, para. 3.
175
Request for Interpretation of the Judgment of November 20th, 1950, in the
asylum case, Judgment of November 27th, 1950, I.C.J. Reports 1950,p. 402.

90 3. THE S COPE AND C ONTENT OF THE D ISPOSITIFW AS
C IRCUMSCRIBED BY THE PETITUM

3.22 In delivering its judgment, a court cannot go beyond the

claims of the Parties and award a Party something that it did not
173
request (the non ultra petita rule) . As Judge Buergenthal said

in his Separate Opinion in the Oil Platforms case:

“a cardinal rule governing the Court's judicial process,

which does not allow the Court to deal with a subject in
the dispositif of its Judgment that the parties to the case
have not, in their final submissions, asked it to
adjudicate”174.

In saying this, Judge Buergentha l was simply reiterating what

was said by the Court in the Asylum Case in the following

terms:

“it is the duty of the Court not only to reply to the
questions as stated in the final submissions of the parties,
but also to abstain from d eciding points not included in
175
those submissions” .

3.23 In short, what the Court decided in 1962 in each of the

operative paragraphs of the dispositif can extend no further than
what Cambodia requested. As a result, the three conclusions

173
Arrest Warrant of 11 April 2000 (Democratic Republic of the Cv.go
Belgium), Judgment, I.C.J. Reports 2002, pp. 18-19, para. 43.
174Oil Platforms (Islamic Republic of IranUnited States of America),
I.C.J. Reports 2003, pp. 270-271, para. 3.
175
Request for Interpretation of the Judgment of November 20th, 1950, in the
asylum case, Judgment of November 27th, 1950, I.C.J. Reports 1950,p. 402. 3.26 Thus, the limited scope of the claim in the third

submission – that “the Temple is situated in te rritory under the
sovereignty of the Kingdom of Cambodia” – as intended by

Cambodia and understood by the Court, circumscribes the scope

and content of the first paragraph of the dispositif . Sovereignty

over the Temple referred to ju st that; the physical Temple
encompassed in what the Court frequently referred to as the

“Temple area” which as will be pointed out below was narrowly

constrained.

3.27 This has a further consequence. Since, as the Court said,

the fourth and fifth submissions were consequential on the third,

the Court’s acceptance of them coul d not entail an expansion of
the area to which the third submission applied. The requirement

to withdraw troops and return cultural objects, being a

consequence of the conclusion that Cambodia had sovereignty
over the Temple, could only apply to the area covered in the

determination of sovereignty. Thus, the second and third

paragraphs of the dispositif could apply to an area no greater

than that covered by th e first paragraph of the dispositif. And,
as will be seen later, the terms used by the Court make clear that

it saw the area as a restri cted one, and certainly not

encompassing all of the territory on the Cambodian side of the
Annex I map line as Cambodia would now like to claim.

3.28 Beyond this, however, independently the second and

third paragraphs of the dispositif were themselves applicable
only to a restricted area. The second paragraph of the dispositif,

923.26 Thus, the limited scope of the claim in the third

submission – that “the Temple is situated in te rritory under the

sovereignty of the Kingdom of Cambodia” – as intended by
Cambodia and understood by the Court, circumscribes the scope

and content of the first paragraph of the dispositif . Sovereignty

over the Temple referred to ju st that; the physical Temple

encompassed in what the Court frequently referred to as the
“Temple area” which as will be pointed out below was narrowly

constrained.

3.27 This has a further consequence. Since, as the Court said,

the fourth and fifth submissions were consequential on the third,

the Court’s acceptance of them coul d not entail an expansion of

the area to which the third submission applied. The requirement
to withdraw troops and return cultural objects, being a

consequence of the conclusion that Cambodia had sovereignty

over the Temple, could only apply to the area covered in the

determination of sovereignty. Thus, the second and third
paragraphs of the dispositif could apply to an area no greater

than that covered by th e first paragraph of the dispositif. And,

as will be seen later, the terms used by the Court make clear that

it saw the area as a restri cted one, and certainly not
encompassing all of the territory on the Cambodian side of the

Annex I map line as Cambodia would now like to claim.

3.28 Beyond this, however, independently the second and
third paragraphs of the dispositif were themselves applicable

only to a restricted area. The second paragraph of the dispositif, phrase “at the Temple, or in its vicinity on Cambodian territory”

can be nothing more than a convenient way to describe what
Cambodia had referred to as the “ruins of the Temple”.

3.31 In the third paragraph of the dispositif, the Court

accepted the fifth submission of Cambodia regarding the return
of cultural objects. The fifth submission referred to cultural

objects “that had been removed fr om the Temple”. The word

“Temple” in this request can refer to no greater an area than the
reference to “Temple” in the third submission over which

sovereignty was being determined. In fact, what the Court

ordered in the third paragraph of the dispositif was the return of

cultural objects “removed from the Temple or the Temple area”.

3.32 However, the change in wording to encompass the

“Temple area” could not affect the geographical scope of the
order. The Court could not have expanded its order to cover an

area well beyond the scope of the order requested. 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. And, in any

event, cultural objects that could have potentially been removed
would only have been in the Temple or in close proximity to it –

they would have been part of the “ruins of the Temple”. It

makes no sense to consider that the reference to the “Temple

area” in operative paragraph 3 was a reference to all of the area
on the Cambodian side of the Annex I map line.

94phrase “at the Temple, or in its vicinity on Cambodian territory”

can be nothing more than a convenient way to describe what
Cambodia had referred to as the “ruins of the Temple”.

3.31 In the third paragraph of the dispositif, the Court

accepted the fifth submission of Cambodia regarding the return
of cultural objects. The fifth submission referred to cultural

objects “that had been removed fr om the Temple”. The word

“Temple” in this request can refer to no greater an area than the
reference to “Temple” in the third submission over which

sovereignty was being determined. In fact, what the Court

ordered in the third paragraph of the dispositif was the return of

cultural objects “removed from the Temple or the Temple area”.

3.32 However, the change in wording to encompass the

“Temple area” could not affect the geographical scope of the
order. The Court could not have expanded its order to cover an

area well beyond the scope of the order requested. 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. And, in any

event, cultural objects that could have potentially been removed
would only have been in the Temple or in close proximity to it –

they would have been part of the “ruins of the Temple”. It

makes no sense to consider that the reference to the “Temple

area” in operative paragraph 3 was a reference to all of the area
on the Cambodian side of the Annex I map line. to which the Judgment applies. While the term “region” is used

in the Judgment, although not in the dispositif, it is generally not

used to define the subject of the dispute.

3.35 Central to Cambodia’s claim to interpretation in this case

is the view that the term “vicinity on Cambodian territory”
extends to all of the area on th e Cambodian side of the Annex I

map line. But, an analysis of the terms used by the Court show

that this could not be so. The terms used by the Court reflect the

fact that it was deciding sovereignty over the Temple, not that it

was making a broad statement a bout the extent of Cambodian

sovereignty asserted through the Annex I map. It was neither
determining a boundary nor dealing with a broad area as

Cambodia now claims.

1.THE M EANING OF THE TERM “T EMPLE ”IN OPERATIVE

PARAGRAPH 1

3.36 As pointed out in Chapter II 17, the Court defined the

dispute in the preliminary objectio ns phase as sovereignty over

the region of the Temple and its precincts. This essentially

limited the issue to the Temple itself, the ground on which it lay

and its immediate surroundings – the precincts. At the beginning
of its Judgment on the mer its, the Court endorses that

understanding of the scope of the dispute. This is reinforced by

the way the Court describes its conclusion about sovereignty –

178See paras. 2.13-2.17 above.

96to which the Judgment applies. While the term “region” is used

in the Judgment, although not in the dispositif, it is generally not

used to define the subject of the dispute.

3.35 Central to Cambodia’s claim to interpretation in this case

is the view that the term “vicinity on Cambodian territory”
extends to all of the area on th e Cambodian side of the Annex I

map line. But, an analysis of the terms used by the Court show

that this could not be so. The terms used by the Court reflect the

fact that it was deciding sovereignty over the Temple, not that it

was making a broad statement a bout the extent of Cambodian

sovereignty asserted through the Annex I map. It was neither
determining a boundary nor dealing with a broad area as

Cambodia now claims.

1.T HE M EANING OF THE TERM “T EMPLE ”INO PERATIVE

PARAGRAPH 1

3.36 As pointed out in Chapter II17, the Court defined the

dispute in the preliminary objectio ns phase as sovereignty over

the region of the Temple and its precincts. This essentially

limited the issue to the Temple itself, the ground on which it lay

and its immediate surroundings – the precincts. At the beginning
of its Judgment on the mer its, the Court endorses that

understanding of the scope of the dispute. This is reinforced by

the way the Court describes its conclusion about sovereignty –

17See paras. 2.13-2.17 above. On its face, the phrase “at the Temple, or in its vicinity on
Cambodian territory” means nothing more than that.

3.39 Indeed the term “vicinity” as used here could not have a

broader meaning. The Oxford E nglish Dictionary defines the

term “vicinity” as “the state, character or quality of being near in

space; propinquity, proximity”, and it defines “in the vicinity
179
of” as “in the neighbourhood (o f)”, “near or close (to)” . The
notion of “vicinity” has to be re lated to a particular object or

thing to which it is near. The extent of the “vicinity” depends

on the thing to which the term is attached. There is thus some

element of proportionality involved . The “vicinity” of a city is

obviously a larger area than th e “vicinity” of a house. The

“vicinity” of a temple would be equally confined.

3.40 The vicinity of the Temple could refer only to the area

near or close by the Temple, what was referred to in the

diplomatic notes of 1949 and 1954 as the “ruins of Preah
180
Vihear” . The French text of operative paragraph 2 uses the

term “environs” which has the sense of surrounding or

encircling something. Since opera tive paragraph 2 was said by

the Court to be an acceptance of the Cambodian request that
police and military personnel be withdrawn from the “ruins of

the Temple” the term vicinity could not have had a wide scope.

179Oxford English Dictionary, online version September 2011 [Annex 103];
Merriam-Webster Dictionary defines “vicinity” as “: the quality or state of
being near: proximity” (Merriam-Web ster, Merriam-Webster's Collegiate
Dictionary, Eleventh Edition, 2003, p. 1393 [Annex 104].
180
See paras. 2.3-2.5 above.

98On its face, the phrase “at the Temple, or in its vicinity on

Cambodian territory” means nothing more than that.

3.39 Indeed the term “vicinity” as used here could not have a
broader meaning. The Oxford E nglish Dictionary defines the

term “vicinity” as “the state, character or quality of being near in

thing to which it is near. The extent of the “vicinity” depends

on the thing to which the term is attached. There is thus some

element of proportionality involved . The “vicinity” of a city is
obviously a larger area than th e “vicinity” of a house. The

“vicinity” of a temple would be equally confined.

3.40 The vicinity of the Temple could refer only to the area

near or close by the Temple, what was referred to in the
diplomatic notes of 1949 and 1954 as the “ruins of Preah

Vihear” 180. The French text of operative paragraph 2 uses the

term “environs” which has the sense of surrounding or

encircling something. Since opera tive paragraph 2 was said by
the Court to be an acceptance of the Cambodian request that

police and military personnel be withdrawn from the “ruins of

the Temple” the term vicinity could not have had a wide scope.

179
Oxford English Dictionary, online version September 2011 [Annex 103];
Merriam-Webster Dictionary defines “vicinity” as “: the quality or state of
being near: proximity” (Merriam-Web ster, Merriam-Webster's Collegiate
Dictionary, Eleventh Edition, 2003, p. 1393 [Annex 104].
180See paras. 2.3-2.5 above. 181
true watershed line in this vicinity” .

Here the use of the term “vicinity” has a narrower scope. The

Court is talking about the map lin e in proximity to the Temple.
This is acknowledged in the French text by the use of neither the

broader term “région” nor the narrower term “environs”. It uses

the term “dans ces parages”.

3.44 The limited scope of the phras e “the Temple, or in its

vicinity” in operative paragraph 2 is further illustrated by the

additional words used in that paragraph. The Court does not
just refer to “the Temple or in its vicinity”. It refers to the

Temple or in its vicinity “on Cambodian territory”. As Thailand

pointed out in oral argument in the hearing on provisional
182
measures , reference to the vicinity of the Temple “in

Cambodian territory” carries th e clear implication that the

vicinity of the Temple also includes Thai territory. If the Court

had intended to say that all Thai military perso nnel had to be
withdrawn from all areas of the Cambodian side of the Annex I

map line, there would have been no need to refer to the Temple

or in its vicinity at all. It would have sufficed to order the

withdrawal of “any military or police forces, or other guards or

181Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962 , p. 35. See also paras
2.44 above and 5.15-5.16 below.
182
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), Request for the Indication of Provisional Measures30 May
2011, CR 2011/14, p. 24, para. 7 (Mr. Alain Pellet).

100 true watershed line in this vicinity” 18.

Here the use of the term “vicinity” has a narrower scope. The

Court is talking about the map lin e in proximity to the Temple.

This is acknowledged in the French text by the use of neither the

broader term “région” nor the narrower term “environs”. It uses

the term “dans ces parages”.

3.44 The limited scope of the phras e “the Temple, or in its

vicinity” in operative paragraph 2 is further illustrated by the

additional words used in that paragraph. The Court does not

just refer to “the Temple or in its vicinity”. It refers to the
Temple or in its vicinity “on Cambodian territory”. As Thailand

pointed out in oral argument in the hearing on provisional
182
measures , reference to the vicinity of the Temple “in

Cambodian territory” carries th e clear implication that the

vicinity of the Temple also includes Thai territory. If the Court
had intended to say that all Thai military perso nnel had to be

withdrawn from all areas of the Cambodian side of the Annex I

map line, there would have been no need to refer to the Temple

or in its vicinity at all. It would have sufficed to order the
withdrawal of “any military or police forces, or other guards or

181
Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962 , p. 35. See also paras
2.44 above and 5.15-5.16 below.
182Request for Interpretation of the Judgment of 15 June 1962 in the Case
Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia
v. Thailand), Request for the Indication of Provisional Measur30 May
2011, CR 2011/14, p. 24, para. 7 (Mr. Alain Pellet). 3. HE M EANING OF THE TERM “T EMPLE A REA ”IN OPERATIVE

PARAGRAPH 3

3.47 That the Court was intending to refer to a restricted area

in operative paragraph 2 of the dispositif is confirmed by its use

in the Judgment of the term “Temple area”.

3.48 The term “Temple area” was used frequently in the case

to describe the subject of the dis pute. It occurs thirteen times in

the Judgment and occurs also in operative paragraph 3. The

word “area” has no intrinsic lim itation as to geographic scope.

An area can be either large or small and its meaning in any
particular case depends on the context in which it is used.

A review of the uses of this term in the 1962 Judgment indicates

that “Temple area” was a convenient way of localizing what was

in dispute without being precise about the specific bounds of the

Temple itself.

3.49 As pointed out earlier, draw ing on its statement of the

subject of the dispute in its Judgment on preliminary objections,

the Court stated, “the subject of the dispute submitted to the

Court is confined to a difference of view about sovereignty over
183
the region of the Temple of Preah Vihear.” And, “the region
of the Temple of Preah Vihear ” meant “the Temple and its

precincts”.

183Case Concerning the Temple of Preah Vihear (Camv. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962,p. 14.

102 3.T HE M EANING OF THE TERM “TEMPLE A REA ”IN OPERATIVE

P ARAGRAPH 3

3.47 That the Court was intending to refer to a restricted area

in operative paragraph 2 of the dispositif is confirmed by its use
in the Judgment of the term “Temple area”.

3.48 The term “Temple area” was used frequently in the case

to describe the subject of the dis pute. It occurs thirteen times in

the Judgment and occurs also in operative paragraph 3. The
word “area” has no intrinsic lim itation as to geographic scope.

An area can be either large or small and its meaning in any

particular case depends on the context in which it is used.

A review of the uses of this term in the 1962 Judgment indicates

that “Temple area” was a convenient way of localizing what was
in dispute without being precise about the specific bounds of the

Temple itself.

3.49 As pointed out earlier, draw ing on its statement of the
subject of the dispute in its Judgment on preliminary objections,

the Court stated, “the subject of the dispute submitted to the

Court is confined to a difference of view about sovereignty over
183
the region of the Temple of Preah Vihear.” And, “the region

of the Temple of Preah Vihear ” meant “the Temple and its
precincts”.

183Case Concerning the Temple of Preah Vihear (Cambv. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962,p. 14. 184
Thailand’s occupation of it in 1954” .

3.52 A clear sense of what the Court had in mind when

referring to the Temple area can be gained by looking at the

Court’s description of the Temple and its location. It said:

“the main Temple buildings stand in the apex of a
triangular piece of high ground jutting out into the plain.

From the edge of the escarpment, the general inclination
of the ground in the northerly direction is downwards to
the Nam Moun river” 18.

The map before the Court 186 showed the main Temple buildings

at the tip of the promontory and ruins extending downwards in a

northerly direction 187. This is what the Court would have seen as

the Temple area – what had been referred to since 1949 as the

“ruins of Preah Vihear”.

3.53 It is also apparent that the Court saw the Temple area as

a restricted one, contained within the promontory on which the

Temple is situated. Referring to a series of maps that had been

sent to Siam the Court said:

“Amongst these [maps] was one of that part of the
Dangrek range in which the Temple is situated, and on it

photograph of the Temple of Phra Viharn [Annex 105].

104 184
Thailand’s occupation of it in 1954” .

3.52 A clear sense of what the Court had in mind when

referring to the Temple area can be gained by looking at the

Court’s description of the Temple and its location. It said:

“the main Temple buildings stand in the apex of a

triangular piece of high ground jutting out into the plain.
From the edge of the escarpment, the general inclination
of the ground in the northerly direction is downwards to
the Nam Moun river” 185.

186
The map before the Court showed the main Temple buildings
at the tip of the promontory and ruins extending downwards in a

northerly direction 187. This is what the Court would have seen as

the Temple area – what had been referred to since 1949 as the

“ruins of Preah Vihear”.

3.53 It is also apparent that the Court saw the Temple area as

a restricted one, contained within the promontory on which the

Temple is situated. Referring to a series of maps that had been
sent to Siam the Court said:

“Amongst these [maps] was one of that part of the

Dangrek range in which the Temple is situated, and on it

184Ibid., p.36.
185
Ibid., p.15.
186Carte annexée au Rapport de MM. Doeringsfeld, Amuedo et Ivey
(Annexe I), filed as Annex LXVIc of Cambodia’s Reply [Annex 101].
187
Sketch of cross-section plan of te Temple of Phra Viharn and aerial
photograph of the Temple of Phra Viharn [Annex 105]. paragraph was an acceptance of the fifth submission of

Cambodia. That submission refe rred only to cu ltural objects

removed from “the Temple”. The Court’s reference in operative

paragraph 3 to “the Temple and the Temple area” reflects the
fact that cultural objects that could have potentially been

removed would only have been in the Temple or in close

proximity to it. The Court saw itself as determining the

question of sovereignty over the “Temple area” and thus the
area in which the requirement to return cultural objects would

be the area over which the Court had determined sovereignty. It

makes no sense to consider that the reference to the “Temple

area” in operative paragraph 3 was a reference to all of the area
on the Cambodian side of the Annex I line. Cambodia’s request

did not relate to that area, nor did the Court give any indication

that it was referring to such an area.

3.57 In his dissenting opinion Judge Sir Percy noted:

“In its Application and Memorial the Kingdom of
Cambodia asked the Court to declare that the territorial
sovereignty over the Temple belongs to it. In neither did

it describe the actual Temple area over 190ch it claims
sovereignty nor has it since done so” .

He pointed out that inherent in the Cambodian argument was

that all of the area on the Cam bodian side of the Annex I line
would be subject to Cambodian sovereignty, and then went on

to say that:

190Ibid., p. 102 (Dissenting Opinion of Sir Percy Spender).

106paragraph was an acceptance of the fifth submission of

Cambodia. That submission refe rred only to cu ltural objects

removed from “the Temple”. The Court’s reference in operative

paragraph 3 to “the Temple and the Temple area” reflects the
fact that cultural objects that could have potentially been

removed would only have been in the Temple or in close

proximity to it. The Court saw itself as determining the

question of sovereignty over the “Temple area” and thus the
area in which the requirement to return cultural objects would

be the area over which the Court had determined sovereignty. It

makes no sense to consider that the reference to the “Temple

area” in operative paragraph 3 was a reference to all of the area
on the Cambodian side of the Annex I line. Cambodia’s request

did not relate to that area, nor did the Court give any indication

that it was referring to such an area.

3.57 In his dissenting opinion Judge Sir Percy noted:

“In its Application and Memorial the Kingdom of
Cambodia asked the Court to declare that the territorial
sovereignty over the Temple belongs to it. In neither did

it describe the actual Temple area over190ich it claims
sovereignty nor has it since done so” .

He pointed out that inherent in the Cambodian argument was

that all of the area on the Cam bodian side of the Annex I line
would be subject to Cambodian sovereignty, and then went on

to say that:

190Ibid., p. 102 (Dissenting Opinion of Sir Percy Spender). 4. HE M EANING OF THE TERM “REGION ”

3.60 Although it is not mentioned in the dispositif, the term

“region” is used by the Court throughout its Judgment. A

“region” can be broad or narro w depending on the context in
which it is used. In some instances the Court uses region in a

relatively narrow sense, in others it uses it in a broader sense.

3.61 As pointed out above, the Court used the term “region of

the Temple of Preah Vihear” to define the subject of the dispute
drawing on what it had said in its 1961 Judgment on preliminary

objections. In the 1961 Judgment the Court had referred to the

“region of the Temple of Preah Vihear and its precincts”. Thus,

when in 1962 Court said, “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” 192it was referring to “the Temple of Preah Vihear and

its precincts”. In this context, therefore, the word region is

rather confined.

3.62 In fact, this was the only time that the Court used the

term “region” in relation to th e subject of the dispute. After

initially treating the subject of the dispute as “sovereignty over

the region of the Temple of Preah Vihear and its precincts”, the
Court began to characterize the dispute as relating to

“sovereignty over the Temple area” and did so consistently for

192Ibid., p. 14.

108 4. THE M EANING OF THE T ERM “R EGION ”

3.60 Although it is not mentioned in the dispositif, the term

“region” is used by the Court throughout its Judgment. A

“region” can be broad or narro w depending on the context in

which it is used. In some instances the Court uses region in a

relatively narrow sense, in others it uses it in a broader sense.

3.61 As pointed out above, the Court used the term “region of

the Temple of Preah Vihear” to define the subject of the dispute

drawing on what it had said in its 1961 Judgment on preliminary

objections. In the 1961 Judgment the Court had referred to the

“region of the Temple of Preah Vihear and its precincts”. Thus,

when in 1962 Court said, “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” 192 it was referring to “the Temple of Preah Vihear and

its precincts”. In this context, therefore, the word region is

rather confined.

3.62 In fact, this was the only time that the Court used the

term “region” in relation to th e subject of the dispute. After
initially treating the subject of the dispute as “sovereignty over

the region of the Temple of Preah Vihear and its precincts”, the

Court began to characterize the dispute as relating to

“sovereignty over the Temple area” and did so consistently for

192
Ibid., p. 14. 3.64 The use of the term “regi on” in the Judgment is not
unlike the use of the term “sector” which is found frequently

relating to words such as “Dangrek”, as in “the Dangrek

sector”196 or “the eastern sector of the Dangrek range” 19. The

reference is to a large area and the term is not used to define the

subject matter of the dispute.

3.65 The use of the term “region” in the 1962 Judgment
reinforces the position set out above that when the Court used

the phrase “at the Temple, or in its vicinity” in operative

paragraph 2, or referred to the “Temple area” in operative

paragraph 3, it was referring to a relatively restricted area in

close proximity to the Temple. The only time the phrase “region

of the Temple of Preah Vihear” was used to define the subject

matter of the dispute it was done in a qualified way. The full
reference was to “region of the Temple of Preah Vihear and its

precincts” 198thus indicating that when the word region was

being used in defining the subject matter of the dispute it was

intended in a very narrow and specific sense. Moreover, the fact

that the Court never used the term “region” in the dispostif,

reinforces that the Court’s decision related to a limited or

confined area.

***

196
Ibid., p. 14.
19Ibid., p. 15.
198
Ibid., p. 14. (Emphasis added).

1103.64 The use of the term “regi on” in the Judgment is not

unlike the use of the term “sector” which is found frequently

relating to words such as “Dangrek”, as in “the Dangrek
196 197
sector” or “the eastern sector of the Dangrek range” . The

reference is to a large area and the term is not used to define the

subject matter of the dispute.

3.65 The use of the term “region” in the 1962 Judgment

reinforces the position set out above that when the Court used

the phrase “at the Temple, or in its vicinity” in operative

paragraph 2, or referred to the “Temple area” in operative

paragraph 3, it was referring to a relatively restricted area in
close proximity to the Temple. The only time the phrase “region

of the Temple of Preah Vihear” was used to define the subject

matter of the dispute it was done in a qualified way. The full

reference was to “region of the Temple of Preah Vihear and its
198
precincts” thus indicating that when the word region was

being used in defining the subject matter of the dispute it was
intended in a very narrow and specific sense. Moreover, the fact

that the Court never used the term “region” in the dispostif,

reinforces that the Court’s decision related to a limited or

confined area.

***

196Ibid., p. 14.
197Ibid., p. 15.

198Ibid., p. 14. (Emphasis added). stated.” 200

3.68 Thus, the frontier and maps would be considered only to
the extent that they were helpful in providing reasons for the

Court’s decision. The Court was not considering these matters

in order to make rulings about them. The Court said it would

“have regard to” the frontier line between the two states in this

sector; it did not say that it w ould determine what the frontier
was in this sector. As in the case of the maps, the frontier was to

be taken account of to the extent it prov ided reasons for the

decision and nothing more.

3.69 The “sole dispute” submitted to the Court was the

question of sovereignty over the Temple. Thus, the Court was
explicit that the frontier lines and maps were relevant only in so

far as they might shed light on the question of sovereignty over

the Temple. The Annex I map and line fell clearly into that

category.

3.70 The Court was not looking at the Annex I map in order
to establish a boundary; its role was much more limited than

that. The potential importance of the map was set out by the

Court early in the Judgment. It was because the line on it was

“purporting to be the outcome of the work of delimitation and

showing the whole Preah Vihear promontory, with the Temple
201
area, as being on the Cambodian side.” In short, the map was

200Ibid., p. 14.

201Ibid., p. 21.

112 stated.”200

3.68 Thus, the frontier and maps would be considered only to

the extent that they were helpful in providing reasons for the

Court’s decision. The Court was not considering these matters

in order to make rulings about them. The Court said it would

“have regard to” the frontier line between the two states in this
sector; it did not say that it w ould determine what the frontier

was in this sector. As in the case of the maps, the frontier was to

be taken account of to the extent it prov ided reasons for the

decision and nothing more.

3.69 The “sole dispute” submitted to the Court was the

question of sovereignty over the Temple. Thus, the Court was

explicit that the frontier lines and maps were relevant only in so

far as they might shed light on the question of sovereignty over

the Temple. The Annex I map and line fell clearly into that
category.

3.70 The Court was not looking at the Annex I map in order

to establish a boundary; its role was much more limited than
that. The potential importance of the map was set out by the

Court early in the Judgment. It was because the line on it was

“purporting to be the outcome of the work of delimitation and

showing the whole Preah Vihear promontory, with the Temple
201
area, as being on the Cambodian side.” In short, the map was

200
Ibid., p. 14.
201Ibid., p. 21. Phra Viharn 20. The map itself, the Court said, “drew such

pointed attention to the Preah Vihear region” 204 and “the map

marked Preah Vihear itself qui te clearly as lying on the

Cambodian side of the line.” 205 Although Thailand eventually

produced maps showing Phra Viha rn on the Thai side of the

boundary, Thailand, the Court sai d, “continued, even for public

and officia1 purposes, to use the Annex 1 map, or other maps

showing Preah Vihear as lying in Cambodia.” 206 The Court

referred to the:

“occasions (…) on which it would have been natural for

Thailand to raise the matter, if she considered the map 207
indicating the frontier at Preah Vihear to be incorrect” .

The 1947 meeting of the Fran co-Siamese Conciliation

Commission provided, the Court said, “an outstanding

opportunity for Thailand to claim a rectification of the frontier

at Preah Vihear,” but, it went on to say, Thailand “filed with the

Commission a map showing Pr eah Vihear as lying in

Cambodia” 208.

3.74 A further and critical factor indicating that the issue was

failure to object to indications of Cambodian sovereignty over

203
Ibid., pp. 24-25.
204
Ibid., p. 26.
205Ibid.

206Ibid., p. 27.
207
Ibid., p. 28.
208Ibid.

114 203
Phra Viharn . The map itself, the Court said, “drew such
204
pointed attention to the Preah Vihear region” and “the map

marked Preah Vihear itself qui te clearly as lying on the
205
Cambodian side of the line.” Although Thailand eventually

produced maps showing Phra Viha rn on the Thai side of the
boundary, Thailand, the Court sai d, “continued, even for public

and officia1 purposes, to use the Annex 1 map, or other maps

showing Preah Vihear as lying in Cambodia.” 206 The Court

referred to the:

“occasions (…) on which it would have been natural for
Thailand to raise the matter, if she considered the map
207
indicating the frontier at Preah Vihear to be incorrect” .

The 1947 meeting of the Fran co-Siamese Conciliation

Commission provided, the Court said, “an outstanding

opportunity for Thailand to claim a rectification of the frontier
at Preah Vihear,” but, it went on to say, Thailand “filed with the

Commission a map showing Pr eah Vihear as lying in

Cambodia” 20.

3.74 A further and critical factor indicating that the issue was

failure to object to indications of Cambodian sovereignty over

203
Ibid., pp. 24-25.
204Ibid., p. 26.
205
Ibid.
206Ibid., p. 27.

207Ibid., p. 28.
208
Ibid. “is whether the Parties did adopt the Annex 1 map, and
the line indicated on it, as representing the outcome of
the work of delimitation of the frontier in the region of
210
Preah Vihear ” .

3.76 And in considering what should have alerted the Thai

officials about the Annex I map, the Court said:

“anyone who considered that the line of the watershed at

Preah Vihear ought to follow the line of the escarpment,
or whose duty it was to scrutinize the map, there was
everything in the Annex I map to put him upon
enquiry” 211.

3.77 Speaking of Thailand’s failure to raise the matter in the

Franco-Siamese Commission, the Court said:

“The natural inference from Thailand's failure to
mention Preah Vihear on this occasion is, again, that she

did not do so because she accepted the frontier at this
point as it was drawn on the map, irrespective of its
correspondence with the watershed line.” 212

The reference to the frontier “at this point” indicated once again

that the Court’s concern was limited to Phra Viharn.

3.78 Further, after setting out Th ailand’s explanation for its

silence, the Court observed:

210
Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962, p. 22. (Emphasis
added).
211Ibid., p. 26.
212
Ibid., p. 29. (Emphasis added).

116 “is whether the Parties did adopt the Annex 1 map, and
the line indicated on it, as representing the outcome of
the work of delimitation of the frontier in the region of
210
Preah Vihear ” .

3.76 And in considering what should have alerted the Thai

officials about the Annex I map, the Court said:

“anyone who considered that the line of the watershed at

Preah Vihear ought to follow the line of the escarpment,
or whose duty it was to scrutinize the map, there was
everything in the Annex I map to put him upon
enquiry” 211.

3.77 Speaking of Thailand’s failure to raise the matter in the

Franco-Siamese Commission, the Court said:

“The natural inference from Thailand's failure to
mention Preah Vihear on this occasion is, again, that she

did not do so because she accepted the frontier at this
point as it was drawn on the map, irrespective of its
correspondence with the watershed line.” 212

The reference to the frontier “at this point” indicated once again

that the Court’s concern was limited to Phra Viharn.

3.78 Further, after setting out Th ailand’s explanation for its

silence, the Court observed:

Cambodia as claims to be dealt with in the operative part of the
Judgment.

F. Conclusion

3.81 The Judgment of 15 June 1962 is very clear in the

restriction of its scope to the Temple itself. Various terms were

used to describe the Temple, but they were consistent in their
application to a confined area. The Court had indicated that the

subject of the dispute was sove reignty over the Temple area,

which meant the Temple itself, the ground on which it lay and

the immediately surrounding area. This was what Cambodia
referred to when it wanted troops withdrawn from the “ruins of

Preah Vihear” and what the Court meant when it referred to the

Temple and its precincts. And the Court rejected the attempt by
Cambodia to expand the matter in dispute to the status of the

Annex I map or whether the map line constituted a boundary.

That simply went beyond the “sole dispute submitted to it.”

118clear in refusing to deal with the first and second submissions of
Cambodia as claims to be dealt with in the operative part of the

Judgment.

F. Conclusion

3.81 The Judgment of 15 June 1962 is very clear in the

restriction of its scope to the Temple itself. Various terms were
used to describe the Temple, but they were consistent in their

application to a confined area. The Court had indicated that the

subject of the dispute was sove reignty over the Temple area,

which meant the Temple itself, the ground on which it lay and

the immediately surrounding area. This was what Cambodia

referred to when it wanted troops withdrawn from the “ruins of

Preah Vihear” and what the Court meant when it referred to the
Temple and its precincts. And the Court rejected the attempt by

Cambodia to expand the matter in dispute to the status of the

Annex I map or whether the map line constituted a boundary.

That simply went beyond the “sole dispute submitted to it.” 4.2 The existence of a prima facie finding concerning the

jurisdiction of the Court or the ad missibility of the request does

not create a legal presumption that the conditions for the Court
218
to exercise its jurisdiction are actually met . The case-law on

the relation of prima facie jurisdiction and jurisdiction proper

applies to litigation on interpretation. Thus, in its Judgment on
Preliminary Objections in Georgia v. Russia, the Court insisted

upon the provisional character of the findings of 15 October

2008 Order, recalling that

“this provisional conclusion [was] without prejudice to
the Court’s definitive d ecision on the question of
whether it [had] jurisdiction to deal with the merits of
the case, which [was] to be addressed after consideration
219
of the written and oral pleadings of both Parties.”

4.3 Such an approach allows the Court to deal with the
urgency of a request for provisi onal measures and thus to

preserve a necessary independence of mind for a renewed

appreciation of the conditions of admissibility.

4.4 This is all the more true in the case of a Request for

interpretation, in light of the conditions for admissibility laid
down by the Court’s jurisprudence. In the Asylum Case, the

Court explained that Article 60 of the Statute

218See Anglo-Iranian Oil Co. case (jurisdiction), Judgment of July 22nd,
1952, I.C.J. Reports 1952, pp. 102-103.

219Case Concerning Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment of April 1st, 2011, para. 129.

1204.2 The existence of a prima facie finding concerning the
jurisdiction of the Court or the ad missibility of the request does

not create a legal presumption that the conditions for the Court

to exercise its jurisdiction are actually met 218. The case-law on

the relation of prima facie jurisdiction and jurisdiction proper

applies to litigation on interpretation. Thus, in its Judgment on

Preliminary Objections in Georgia v. Russia, the Court insisted

upon the provisional character of the findings of 15 October
2008 Order, recalling that

“this provisional conclusion [was] without prejudice to
the Court’s definitive d ecision on the question of

whether it [had] jurisdiction to deal with the merits of
the case, which [was] to be addressed after consideration
of the written and oral pleadings of both Parties.” 219

4.3 Such an approach allows the Court to deal with the

urgency of a request for provisi onal measures and thus to

preserve a necessary independence of mind for a renewed

appreciation of the conditions of admissibility.

4.4 This is all the more true in the case of a Request for

interpretation, in light of the conditions for admissibility laid

down by the Court’s jurisprudence. In the Asylum Case, the

Court explained that Article 60 of the Statute

218See Anglo-Iranian Oil Co. case (jurisdiction), Judgment of July 22nd,
1952, I.C.J. Reports 1952, pp. 102-103.
219
Case Concerning Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment of April 1st, 2011, para. 129. determination of the meaning and of the limits of the judgment

is necessary.

4.6 The difficulty of appreciating the fulfilment of Article 60

requirements at the provisiona l measures stage without going
too much into the merits, appeared with clarity in the Avena

case. Unsurprisingly, at the me rits stage, th e Court found it

appropriate,

“to review again whether there does exist a dispute over
whether the obligation in paragraph 153(9) of the Avena
Judgment is an obligation of result. The Court will also
at this juncture need to consider whether there is indeed
a difference of opinion between the Parties as to whether

the obligation in paragraph 153(9) of the Avena
Judgment falls222on all United States federal and state
authorities.”

4.7 The link between the conditions for admissibility and the

merits of the case is a noticeable characteristic of litigation

under Article 60 of the Statute. This also explains why generally
admissibility and the merits are co nsidered in a single phase. It

is for the same reason that, in the present proceedings, Thailand

has not raised preliminary objections. But the fact remains that

Cambodia’s Request for interpretation does not meet the well-
established requirements imposed by Article 60 of the Statute

and clarified by the Court’s case-law. In the absence of any

222Request 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), Judgment, I.C.J. Reports
2009, p. 10, para. 20.

122determination of the meaning and of the limits of the judgment

is necessary.

4.6 The difficulty of appreciating the fulfilment of Article 60

requirements at the provisiona l measures stage without going
too much into the merits, appeared with clarity in the Avena

case. Unsurprisingly, at the me rits stage, th e Court found it

appropriate,

the obligation in paragraph 153(9) of the Avena
Judgment fall222pon all United States federal and state
authorities.”

4.7 The link between the conditions for admissibility and the

merits of the case is a noticeable characteristic of litigation

under Article 60 of the Statute. This also explains why generally
admissibility and the merits are co nsidered in a single phase. It

is for the same reason that, in the present proceedings, Thailand

has not raised preliminary objections. But the fact remains that

Cambodia’s Request for interpretation does not meet the well-
established requirements imposed by Article 60 of the Statute

and clarified by the Court’s case-law. In the absence of any

nevertheless:

“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 clause” 225.

4.10 It thus appears that the requirement concerning the

existence of a dispute under Artic le 60 of the St atute involves

specific characteristics, since what can be achieved through

interpretation (the object of the dispute) is necessarily

circumscribed by the operative part of the judgment to be
interpreted. It is only if the Court identifies a genuine dispute

over the interpretation of an operative clause that it may have

recourse to reasons that are inseparable from the dispositif, in

order to settle that dispute.

“[A] request for interpretation must relate to a dispute
between the parties relating to the meaning or scope of

224Ibid., para. 22, and the case-law cited therein: Interpretation of Judgments
Nos. 7 and 8 (The Chorzów Factory), Judgment No. 11, 1927, P.C.I.J., Series
A, No. 13, pp. 10-12; 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), Provisional
Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 325, para. 53.

225Request 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. 23 and the
case-law cited therein: 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;
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), Provisional Measures,
Order of 16 July 2008, I.C.J. Reports 2008, p. 323, para. 47.

124 224
dispute under Article 36, paragraph 2, of the Statute” , it is

nevertheless:

“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 clause” 225.

4.10 It thus appears that the requirement concerning the

existence of a dispute under Artic le 60 of the St atute involves

specific characteristics, since what can be achieved through

interpretation (the object of the dispute) is necessarily

circumscribed by the operative part of the judgment to be
interpreted. It is only if the Court identifies a genuine dispute

over the interpretation of an operative clause that it may have

recourse to reasons that are inseparable from the dispositif, in

order to settle that dispute.

“[A] request for interpretation must relate to a dispute
between the parties relating to the meaning or scope of

between the Parties. Article 98 of the Rules of the Court

requires the Party introducing a Request for interpretation to

indicate “the precise point or points in dispute as to the meaning
or scope of the Judgment”. Paragraphs 5 and 6 of the Request

are probably intended to re spond to this requirement 22, but

hardly manage to do so: while paragraph 6 appears as a chapeau

presenting the following section, paragraph 5 fails to identify
the points of the Judgment that are said to be unclear,

ambiguous, or contradictory.

4.13 The paragraph of the Request referring to Article 98
paragraph 2 of the Rules of the Court reads as follows:

“(1) according to Cambodia, the Judgment is based on
the prior existence of an international boundary
established and recognized by both States;

(2) according to Cambodia, that boundary is defined by
the map to which the Court refers on page 21 of its
Judgment, which ‘has become known in the case (and
will be referred to herein) as the Annex I map’, a map
which enables the Court to find that Cambodia’s

sovereignty over the Temple is a direct and automatic
consequence of its sovereignty over the territory on
which the Temple is situat ed (for convenience, the
Annex I map and the Court’s map showing an
enlargement of the area of the Temple are attached as

Cartographic Annexes 1 and 2);

(3) according to the Judgment, Thailand is under an
obligation to withdraw any military or other personnel

228Ibid., paras. 5-6.

126dispositif itself, on the meaning of which there is no dispute

between the Parties. Article 98 of the Rules of the Court

requires the Party introducing a Request for interpretation to

indicate “the precise point or points in dispute as to the meaning

or scope of the Judgment”. Paragraphs 5 and 6 of the Request
228
are probably intended to re spond to this requirement , but
hardly manage to do so: while paragraph 6 appears as a chapeau

presenting the following section, paragraph 5 fails to identify

the points of the Judgment that are said to be unclear,

ambiguous, or contradictory.

4.13 The paragraph of the Request referring to Article 98
paragraph 2 of the Rules of the Court reads as follows:

“(1) according to Cambodia, the Judgment is based on
the prior existence of an international boundary
established and recognized by both States;

(2) according to Cambodia, that boundary is defined by
the map to which the Court refers on page 21 of its
Judgment, which ‘has become known in the case (and

will be referred to herein) as the Annex I map’, a map
which enables the Court to find that Cambodia’s
sovereignty over the Temple is a direct and automatic
consequence of its sovereignty over the territory on
which the Temple is situat ed (for convenience, the

Annex I map and the Court’s map showing an
enlargement of the area of the Temple are attached as
Cartographic Annexes 1 and 2);

(3) according to the Judgment, Thailand is under an
obligation to withdraw any military or other personnel

228Ibid., paras. 5-6. (a) No Dispute on Paragraph 1 of the Dispositif

4.16 Paragraph 1 of the dispositif is indeed crystal-clear:

“[The Court] finds that the Temple of Preah Vihear is
situated in territory underthe sovereignty of Cambodia” 232;

or, in French:

“[La Cour] dit que le temple de Préah Vihéar est situé en
territoire relevant de la souveraineté du Cambodge.” 233

4.17 The territorial scope of this recognition is limited to the

Temple: the subject matter of paragraph 1 of the dispositif of the

1962 Judgment is the Temple of Preah Vihear and it is clear that

the Court intended to limit the scope of its findings, whatever

they might be, to the Temple only. It may be that the territory
“under the sovereignty of Cambodia” is larger than that referred

to in the findings of the Court, i.e. the Temple ground. But the

Court’s finding tells no more than what it says: the Temple is

located in the territory under th e sovereignty of Cambodia, the

limits of that territory remaining unspecified. Clearly, the Court

did not intend to go beyond this finding; it did not need to; and,
indeed, it did not go beyond it in fact. To r ead this sentence as

implying delimitation of the whole Dangrek region (covered by

the Annex I map) is manifestly a pure extrapolation of the

Court’s finding in paragraph 1 of the dispositif . The formula

23See paras. 3.6, 3.10 and 3.17-3.20 above.

233Case concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962, p. 36.

128 (a) No Dispute on Paragraph 1 of the Dispositif

4.16 Paragraph 1 of the dispositif is indeed crystal-clear:

“[The Court] finds that the Temple of Preah Vihear is
232
situated in territory underthe sovereignty of Cambodia” ;

or, in French:

“[La Cour] dit que le temple de Préah Vihéar est situé en
233
territoire relevant de la souveraineté du Cambodge.”

4.17 The territorial scope of this recognition is limited to the

Temple: the subject matter of paragraph 1 of the dispositif of the
1962 Judgment is the Temple of Preah Vihear and it is clear that

the Court intended to limit the scope of its findings, whatever

they might be, to the Temple only. It may be that the territory

“under the sovereignty of Cambodia” is larger than that referred

to in the findings of the Court, i.e. the Temple ground. But the

Court’s finding tells no more than what it says: the Temple is

located in the territory under th e sovereignty of Cambodia, the
limits of that territory remaining unspecified. Clearly, the Court

did not intend to go beyond this finding; it did not need to; and,

indeed, it did not go beyond it in fact. To r ead this sentence as

implying delimitation of the whole Dangrek region (covered by

the Annex I map) is manifestly a pure extrapolation of the

Court’s finding in paragraph 1 of the dispositif . The formula

232See paras. 3.6, 3.10 and 3.17-3.20 above.
233
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962, p. 36. 4.20 It therefore appears that, fo r Cambodia, either the Court
determined the extent of the entire territory over which

Cambodia has sovereignty or that the Court was only concerned

with the sovereignty of Cambodia on the territory serving as

ground for the Temple. Since the first interpretation is

manifestly untenable, only the second can stand. There can

therefore be no doubt that the Court could perfectly well decide

which of the two States was sovereign over the Temple without
deciding the extent of their respective territorial sovereignty and

therefore without determining the limit between their respective

territories.

4.21 For the rest, Cambodia itself admits that, concerning the

Temple ground, there is no dispute between itself and Thailand:

“Thailand accepts Cambodia’ s sovereignty over the

Temple, but denies that this has effects beyond a li237ed
perimeter confined strictly to the Temple itself.”

“Thailand does not dispute Cambodia’s sovereignty ov238
the Temple — and only over the Temple itself.”

This actually and necessarily involves an admission that there is

no dispute on paragraph 1 of the dispositif.

1304.20 It therefore appears that, fo r Cambodia, either the Court
determined the extent of the entire territory over which

Cambodia has sovereignty or that the Court was only concerned

with the sovereignty of Cambodia on the territory serving as

ground for the Temple. Since the first interpretation is

manifestly untenable, only the second can stand. There can

therefore be no doubt that the Court could perfectly well decide

which of the two States was sovereign over the Temple without
deciding the extent of their respective territorial sovereignty and

therefore without determining the limit between their respective

territories.

4.21 For the rest, Cambodia itself admits that, concerning the

Temple ground, there is no dispute between itself and Thailand:

“Thailand accepts Cambodia’ s sovereignty over the

Temple, but denies that this has effects beyond a lim237d
perimeter confined strictly to the Temple itself.”

“Thailand does not dispute Cambodia’s sovereignty ov238
the Temple — and only over the Temple itself.”

This actually and necessarily involves an admission that there is

no dispute on paragraph 1 of the dispositif.

237Request 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. 24.
238
Ibid., para. 25. withdraw any administration or military or police forces
which may be present in the territories which fall within
the sovereignty of the Federal Republic of Nigeria

pursuant to point II of this operative paragraph. The
Federal Republic of Nigeria has the same obligation in
respect of the territories which fall within the
sovereignty of the Republic of Cameroon pursuant to
242
point II of this operative paragraph” .

4.25 Moreover, the second and third findings required action

in response to Cambodia’s claim of a violation of its territorial
sovereignty over the Temple as a consequence of Thailand’s

occupation of it in 195424. As such, they are extinguished when

the measures ordered therein are taken, at least if the injured

Party considers the violation to be repaired. As will be shown

more amply below, in the aftermath of the 1962 Judgment, and

clearly for a very long period afterwards, Cambodia has made

no complaint as to the way paragraph 2 of the dispositif was

implemented by Thailand.

2.N O D ISPUTE OVER THAILAND ’S COMPLIANCE WITH THE 1962

JUDGMENT

4.26 When seised of a Request for interpretation under

Article 60 of the Statute, the Court must assess its scope against

the principle of the finality of a judgment. The ratio legis of this

provision of the Statute resides in the necessity to give the

242Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002 ,
p. 457, para. 325.
243
See paras. 2.34 and 3.9-3.10 above.

132 withdraw any administration or military or police forces
which may be present in the territories which fall within
the sovereignty of the Federal Republic of Nigeria
pursuant to point II of this operative paragraph. The

Federal Republic of Nigeria has the same obligation in
respect of the territories which fall within the
sovereignty of the Republic of Cameroon pursuant to
point II of this operative paragraph” .2

4.25 Moreover, the second and third findings required action

in response to Cambodia’s claim of a violation of its territorial

sovereignty over the Temple as a consequence of Thailand’s
243
occupation of it in 1954 . As such, they are extinguished when

the measures ordered therein are taken, at least if the injured

Party considers the violation to be repaired. As will be shown
more amply below, in the aftermath of the 1962 Judgment, and

clearly for a very long period afterwards, Cambodia has made

no complaint as to the way paragraph 2 of the dispositif was

implemented by Thailand.

2.N O D ISPUTE OVER THAILAND ’S C OMPLIANCE WITH THE 1962

JUDGMENT

4.26 When seised of a Request for interpretation under

Article 60 of the Statute, the Court must assess its scope against

the principle of the finality of a judgment. The ratio legis of this

provision of the Statute resides in the necessity to give the

words, has not raised any difficulty or objection from its part
246
since 1962 and until 2007 , that is during forty-five years.

4.29 The tardiness of the Request is not in itself a cause of

inadmissibility, and it is recogn ised that a dispute within the

meaning of Article 60 of the Statute can arise from facts

subsequent to the delivery of a judgment; the Court noted this in
247
its 18 July Order . The fact remains that in this particular case,

tardiness poses major challenges to the integrity of Article 60
248
procedure . As such it is inadmissible.

4.30 The implementation of a court’s judgment is, unless

otherwise stipulated, an immedi ate obligation, to be complied

with within a reasonable time afte r it has been rendered. From

this point of view, facts from the period immediately following

the pronouncement of the 1962 Judgment become particularly

relevant as to the existence or not of a dispute regarding its

meaning or its scope. The subsequent consolidation of the
factual situation resulting from Thailand’s implementation

confirms that the Parties shared a common understanding of the

obligations resulting from the Judgment.

246Request 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. 12.
247Request 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. 37.
248
See paras. 4.70-4.72 below.

134immediate aftermath; compliance that, in Cambodia’s own

words, has not raised any difficulty or objection from its part

since 1962 and until 2007 246, that is during forty-five years.

4.29 The tardiness of the Request is not in itself a cause of

inadmissibility, and it is recogn ised that a dispute within the
meaning of Article 60 of the Statute can arise from facts

subsequent to the delivery of a judgment; the Court noted this in

its 18 July Order 247. The fact remains that in this particular case,

tardiness poses major challenges to the integrity of Article 60
248
procedure . As such it is inadmissible.

4.30 The implementation of a court’s judgment is, unless

otherwise stipulated, an immedi ate obligation, to be complied

with within a reasonable time afte r it has been rendered. From

this point of view, facts from the period immediately following

the pronouncement of the 1962 Judgment become particularly

relevant as to the existence or not of a dispute regarding its
meaning or its scope. The subsequent consolidation of the

factual situation resulting from Thailand’s implementation

confirms that the Parties shared a common understanding of the

obligations resulting from the Judgment.

246
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. 12.
247Request 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. 37.

248See paras. 4.70-4.72 below. 13 May 1970 250. They must equally be comprehended in the

context of the cold war period, echoes of which are often

present in the exchanges betw een Cambodia and Thailand, and

also having in mind the particular history of the Southeast Asia

of that period, a period of civil and inter-state armed conflicts.

Thus, although the pre-1970 documents do not always reveal

agreements between the Parties, at the same time, they don’t

display any dispute on the interpretation of and compliance with

the 1962 Judgment, the only aspect relevant for the present

proceedings.

(a) The 1962 Documents

4.33 While the Court’s Judgment of 15 June 1962 was

celebrated in Phnom Penh as “Cambodia’s greatest victory in
251
several centuries” , inspiring its Head of State, Prince
252
Sihanouk to “shave his head in thanksgiving” and to declare a
253
holiday “to commemorate this historic event” , in Thailand,

250
See Ministry of Foreign Affairs of the Kingdom of Thailand , Déclaration
commune entre la Thaïlande et le Cambodge , 13 May 1970, Foreign Affairs
Bulletin 1970 Vol. IX, Nos. 1-6 (August 1966-July 1970), pp. 436-437
[Annex 79] and Chao Thai Newspaper, 14 May 1970, “Ambassadors will be
exchanged soon. Cambodia is attacked and its domestic affairs interfered”
[Annex 80]. See also Daily News, 14 May 1970, “Thailand and Cambodia
issued a joint communiqué to resume diplomatic ties in 2 weeks”
[Annex 81].

251News report, 18 June 1962, “Populace rejoices over border decision”
[Annex 6].
252
Ibid.
253Ibid., p. 1.

13613 May 1970 250. They must equally be comprehended in the

context of the cold war period, echoes of which are often

present in the exchanges betw een Cambodia and Thailand, and

also having in mind the particular history of the Southeast Asia

of that period, a period of civil and inter-state armed conflicts.

Thus, although the pre-1970 documents do not always reveal

agreements between the Parties, at the same time, they don’t

display any dispute on the interpretation of and compliance with

the 1962 Judgment, the only aspect relevant for the present

proceedings.

(a) The 1962 Documents

4.33 While the Court’s Judgment of 15 June 1962 was

251News report, 18 June 1962, “Populace rejoices over border decision”
[Annex 6].
252
Ibid.
253Ibid., p. 1. the decision goes against the express terms of the
relevant provisions of the 1904 and 1907 Treaties and is
contrary to the principles of law and justice, but stating

nonetheless that, as a member of the United Nations, His
Majesty’s Government will honour the obligations
incumbent upon it under the said decision in fulfilment of
its undertaking under Article 94 of the Charter.

I wish to inform you that, in deciding to comply with the
decision of the International Court of Justice in the Case
concerning the Temple of Ph ra Viharn, His Majesty’s

Government desires to make an express reservation
regarding whatever rights Th ailand has, or may have in
future, to recover the Temple of Phra Viharn by 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.” 257

4.35 A few days later, the Government made known to the

public the measures it would ta ke to ensure successful
258
compliance with the Judgment . A barbed-wire fence

surrounding the Temple was thus put in place to make visible

257
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, Annex 1.
(Emphasis added). The letter was transmitted to the Permanent Missions of
the States Members of the United Nations. The same letter was published
bythe Ministry of Foreign Affairs of the Kingdom of Thailand, Foreign
Affairs Bulletin, Vol. I, No. 6, June - July 1962, pp. 128-130 [Annex 36].
258
See Chao Thai Newspaper , 13 July 1962, “Flag Lowering Ceremony:
United Nations and Cambodia informed” [Annex 17]; United States Embassy
in Bangkok, Telegram to United Stat es Secretary of State, No. 43,
6 July 1962 [Annex 15].

138 the decision goes against the express terms of the
relevant provisions of the 1904 and 1907 Treaties and is

contrary to the principles of law and justice, but stating
nonetheless that, as a member of the United Nations, His
Majesty’s Government will honour the obligations
incumbent upon it under the said decision in fulfilment of

its undertaking under Article 94 of the Charter.

I wish to inform you that, in deciding to comply with the

decision of the International Court of Justice in the Case
concerning the Temple of Ph ra Viharn, His Majesty’s
Government desires to make an express reservation

regarding whatever rights Th ailand has, or may have in
future, to recover the Temple of Phra Viharn by having
recourse to any existing or subsequently applicable legal
process, and to register a protest against the decision of

the International Court of Justice257arding the Temple
of Phra Viharn to Cambodia.”

4.35 A few days later, the Government made known to the

public the measures it would ta ke to ensure successful

compliance with the Judgment 258. A barbed-wire fence

surrounding the Temple was thus put in place to make visible

the States Members of the United Nations. The same letter was published
bythe Ministry of Foreign Affairs of the Kingdom of Thailand, Foreign
Affairs Bulletin, Vol. I, No. 6, June - July 1962, pp. 128-130 [Annex 36].
258See Chao Thai Newspaper , 13 July 1962, “Flag Lowering Ceremony:
United Nations and Cambodia informed” [Annex 17]; United States Embassy
in Bangkok, Telegram to United Stat es Secretary of State, No. 43,

6 July 1962 [Annex 15]. Cambodia, by the staircases that had been in use for centuries to

access the Temple from the south:

“When asked how Cambodia would access the Temple,

General Thanom said there is only one way which is the
broken staircase on the cliff which can be repaired or
done otherwise by Cambodia.” 263

4.37 Cambodia, as well as the United Nations, was informed
264
of all these steps of implementation . Thailand’s Foreign

Affairs Bulletin published Communiqués of the government
265
announcing compliance with the Judgment and the letter from

the Thai Foreign Minister to the Secretary-General of the United

Nations informing him of Thailand’s decision to comply with
266
the 1962 Judgment . Cambodia’s immediate reactions to the

measures taken by Thailand reflected – to use the words of the

U.S. Chargé d’affaires in Phnom Penh – “continued Cambodian

skepticism over dependability RTG commitment, compounded
with expressions of righteous satisfaction and smugness over

Thai discomfiture.” 267 However, Prince Sihanouk, Cambodia’s

263
Chao Thai Newspaper, 13 July 1962, “Flag Lowering Ceremony: United
Nations and Cambodia informed” [Annex 17].
264
Ibid.
265Ministry of Foreign Affairs of the Kingdom of Thailand, Foreign Affairs
Bulletin, Vol. I, No.6, June - July 1962, pp. 128-130 [Annex 36].

266Ibid.
267
United States Embassy in Phnom Penh, Airgram to Department of State,
“Preah Vihear: Cambodian Reaction to Thai Announcement of Compliance
with ICJ Ruling”, No. A-32, 12 July 1962, p. 1 [Annex16]; see also United
States Embassy in Phnom Penh, Airgram to Department of State, “ Réalités
Discusses Problems of Preah Vihear Turnover”, No. A-37, 16 July 1962
[Annex 20].

140Cambodia, by the staircases that had been in use for centuries to

access the Temple from the south:

“When asked how Cambodia would access the Temple,

General Thanom said there is only one way which is the
broken staircase on the cliff which can be repaired or
done otherwise by Cambodia.” 263

4.37 Cambodia, as well as the United Nations, was informed
264
of all these steps of implementation . Thailand’s Foreign

Affairs Bulletin published Communiqués of the government
265
announcing compliance with the Judgment and the letter from

the Thai Foreign Minister to the Secretary-General of the United

Nations informing him of Thailand’s decision to comply with
266
the 1962 Judgment . Cambodia’s immediate reactions to the

measures taken by Thailand reflected – to use the words of the

U.S. Chargé d’affaires in Phnom Penh – “continued Cambodian

skepticism over dependability RTG commitment, compounded
with expressions of righteous satisfaction and smugness over

Thai discomfiture.” 267 However, Prince Sihanouk, Cambodia’s

Sihanouk accused Thailand of attempting to take back the

Temple, by fighting from behind the barbed-wire fence:

“Il y a mieux encore, car bien que les militaires
stationnés à Préah Vihéar en aient été retirés, le pied de
la colline est environné de fils de fer barbelé et le
Ministre de l’Intérieur thai a donné l’ordre à ses forces

de police de tirer sur quiconque s’approcherait de ces
barbelés. Il est clair donc qu’ils n’ont pas renoncé à
leurs visés sur Preah Vihear. (...)

L’incident qui nous occupe est sans nul doute le
contrecoup de l’affaire de Preah Vihear où la Thaïlande
a subi une grande perte de face devant le monde. Ils

veulent par la guerre ‘laver cet affront’ et annexer une
partie encore plus grande de notre territoire. Comme je
l’ai dit, mes amis occidentaux ne voient pas ce à quoi les
Thaïlandais et les Sud-Vietnamie ns veulent en venir et
273
croient voir chez moi une manie de la persécution.”

4.39 It is in this context that Thailand requested the United
274
Nations to nominate a mediator , in the hope that bilateral

relations could improve and maybe diplomatic relations be re-

established. With Cambodia’s consent, Mr. Nils Gussing was
appointed as personal representative of the Secretary-General of

the United Nations to inquire into the problems between

272United States Embassy in Bangkok, Telegram to United States Secretary
of State, No. 236, 13 August 1962 [Annex24]; United States Embassy in
Phnom Penh , Telegram to United States Secr etary of State, No. 106,
14 August 1962 [Annex 25].
273
United States Embassy in Phnom Penh, Airgram to Department of State,
“Sihanouk Charges Thai Aggression in Statement to Press”, No. A-88, 16
August 1962, pp. 4 and 5 [Annex 26].
274
See French Ambassador to Thailand, Note to Minister of Foreign Affairs,
No. 479-AS, 27 September 1962, p. 3 [Annex 29].

142 272
each Party denied responsibility . On that occasion, Prince

Sihanouk accused Thailand of attempting to take back the

Temple, by fighting from behind the barbed-wire fence:

de police de tirer sur quiconque s’approcherait de ces
barbelés. Il est clair donc qu’ils n’ont pas renoncé à
leurs visés sur Preah Vihear. (...)

L’incident qui nous occupe est sans nul doute le
contrecoup de l’affaire de Preah Vihear où la Thaïlande
a subi une grande perte de face devant le monde. Ils

4.39 It is in this context that Thailand requested the United
274
Nations to nominate a mediator , in the hope that bilateral

relations could improve and maybe diplomatic relations be re-

established. With Cambodia’s consent, Mr. Nils Gussing was
appointed as personal representative of the Secretary-General of

the United Nations to inquire into the problems between

opinion that if this visit takes place without any
untoward incident, it may mark a turning point in the
present situation and contribute in some measure to a
relieving of current tensions.” 278

4.40 As Mr. Gussing observed, important problems continued

to exist between Cambodia and Thailand. Notably, on the

promontory of Phra Viharn, but largely in the Dangrek region,

issues of delimitation and demarcation were bound to arise 279,
280
since the Judgment had not provided for them .

4.41 There is little doubt that if the Parties could have reached

agreement on the delimitation of the boundary in the region,
such an agreement would have facilitated Thailand’s

compliance with the Judgment. However, Khmero-Thai

relations had deteriorated too far, and the tone often too

bellicose to leave any illusion th at prospects of this kind could

come about. Meanwhile, Thailand remained under an obligation

to implement the Judgment, even in the absence of an agreement

on the delimitation of the boundary. The dispositif was

unconditional in requiring implementation and it was only

278Mission to Thailand and Cambodia, First Report by the personal
representative of the Secretary-General, PL/111 Confidential Report No. 1,
25 November 1962, pp. 3-4, para. 5 (emphasis added) and respectively
pp. 11-12, paras. 19-20 [Annex 32].

279Ibid., p. 14, para. 23.
280
See also paras. 3.68-3.78 above; see also United States Embassy in Phnom
Penh, Telegram to United States Secret ary of State, No. 68, 2 August 1962
[Annex 23]; French Ambassador to Thailand, Note to Minister of Foreign
Affairs, No. 479-AS, 27 September 1962, p. 5 [Annex 29].

144 Governments not to let this question and, in particular its
relationship to the impendi ng visit of Prince Sihanouk,
flare up into a major incident. The Mission is of the

opinion that if this visit takes place without any
untoward incident, it may mark a turning point in the
present situation and contribute in some measure to a
278
relieving of current tensions.”

4.40 As Mr. Gussing observed, important problems continued

to exist between Cambodia and Thailand. Notably, on the

promontory of Phra Viharn, but largely in the Dangrek region,
issues of delimitation and demarcation were bound to arise 279,

since the Judgment had not provided for them 28.

4.41 There is little doubt that if the Parties could have reached

agreement on the delimitation of the boundary in the region,

such an agreement would have facilitated Thailand’s

compliance with the Judgment. However, Khmero-Thai

relations had deteriorated too far, and the tone often too

bellicose to leave any illusion th at prospects of this kind could

come about. Meanwhile, Thailand remained under an obligation

to implement the Judgment, even in the absence of an agreement
on the delimitation of the boundary. The dispositif was

unconditional in requiring implementation and it was only

Penh, Telegram to United States Secret ary of State, No. 68, 2 August 1962
[Annex 23]; French Ambassador to Thailand, Note to Minister of Foreign
Affairs, No. 479-AS, 27 September 1962, p. 5 [Annex 29]. (b) Prince Sihanouk’s Pilgrimage to the Temple on 5 January

1963 and Cambodia’s Subsequent Satisfaction with

Implementation

285
4.43 As announced several months in advance , Cambodia

intended to celebrate the victory in The Hague by organizing an

official pilgrimage to the Temple, with Prince Sihanouk leading

it. And if it only occurred on 5 January 1963, it was because

substantial public works had to be undertaken in preparation for
286
the visit . Planes and helicopters were used to shuttle guests to

this remote region, where airfields had been built to
287
accommodate them . French chefs prepared lavish meals and
288
fine wine and cognac was free-flowing . Professors Reuter and

Pinto, to whom Cambodia felt deeply indebted for the services

before the Court, were part of the cortège, as were the entire

Cabinet, members of the National Assembly, province

governors, all heads of diplomatic missions, all chargés

d’affaires in Phnom Penh, a number of priests and the local

population. The estimated cortège was formed of about one
thousand five hundred pilgrims 289. This was a celebration, on a

285
See para.4.37 above. See also Cambodian Head of State, Press
Conference, 5 November 1962 [Annex 31].
286United States Embassy in Phnom Penh, Airgram to Department of State,
“Cambodian Official Reoccupation of Preah Vihear”, No. A-325, 10 January

1963, pp. 2-3 [Annex 51].
287Ibid., p. 4.
288
Ibid.
289
United States Embassy in Phnom Penh, Telegram to United States
Secretary of State, No. 528, 7 January 1963[Annex 48]. See also Ministry of
Information of Cambodia , Cambodge d'aujourd'hui, Nos. 48-49-50-51,
September - December 1962 [Annex 38].

146 (b) Prince Sihanouk’s Pilgrimage to the Temple on 5 January

1963 and Cambodia’s Subsequent Satisfaction with

Implementation

4.43 As announced several months in advance 285, Cambodia

intended to celebrate the victory in The Hague by organizing an

official pilgrimage to the Temple, with Prince Sihanouk leading

it. And if it only occurred on 5 January 1963, it was because

substantial public works had to be undertaken in preparation for
286
the visit . Planes and helicopters were used to shuttle guests to

this remote region, where airfields had been built to
287
accommodate them . French chefs prepared lavish meals and
288
fine wine and cognac was free-flowing . Professors Reuter and

Pinto, to whom Cambodia felt deeply indebted for the services

before the Court, were part of the cortège, as were the entire

Cabinet, members of the National Assembly, province

governors, all heads of diplomatic missions, all chargés

d’affaires in Phnom Penh, a number of priests and the local

population. The estimated cortège was formed of about one
289
thousand five hundred pilgrims . This was a celebration, on a

285See para.4.37 above. See also Cambodian Head of State, Press
Conference, 5 November 1962 [Annex 31].
286
United States Embassy in Phnom Penh, Airgram to Department of State,
“Cambodian Official Reoccupation of Preah Vihear”, No. A-325, 10 January
1963, pp. 2-3 [Annex 51].
287
Ibid., p. 4.
288Ibid.

289United States Embassy in Phnom Penh, Telegram to United States
Secretary of State, No. 528, 7 January 1963[Annex 48]. See also Ministry of
Information of Cambodia , Cambodge d'aujourd'hui, Nos. 48-49-50-51,

September - December 1962 [Annex 38]. foot of the cliff. During his stay on the promontory, he never set

foot beyond the barbed-wire fence or on any ground considered
295
by Thailand to be part of its territory . When Prince Sihanouk

was asked about the barbed-wire fence, which had given some
296
cause for concern prior to the pilgrimage , the following

exchange occurred:

“When he mentioned the Thai construction of the
barbed-wire area, he described it as Thai encroachment
by several meters on Cambodian territory awarded it by
the International Court of Justice. He said that he would

not, however, make an issue of this matter as these few
meters were unimportant.” 297

4.46 While on the spot, Prince Si hanouk enthusiastically

spoke of “fraternizing going on at the barbed-wire barrier

between Thai and Cambodian soldiers” 298. A reporter from the

New York Times described his attitude towards the fence and the

Thai personnel beyond it as follows:

“Noting that Cambodian provincial guards had passed
some bottles of French cognac to the Thai border police
on the other side of the barbed-wire fence at the frontier,

only a few yards from the temple, the Prince told

295See para. 4.42 above.
296
See paras. 4.39 above.
297
United States Embassy in Phnom Penh, Airgram to Department of State,
“Cambodian Official Reoccupation of Preah Vihear”, No. A-325, 10 January
1963, p. 5. (Emphasis added) [Annex 51].
298United States Embassy in Phnom Penh, Airgram to Department of State,
“Cambodian Official Reoccupation of Preah Vihear”, No. A-325, 10 January
1963, p. 5 [Annex 51]. See also French Embassy in Phnom Penh,

Télégramme, No. 14.15, 5 January 1963 [Annex 44].

148foot of the cliff. During his stay on the promontory, he never set

foot beyond the barbed-wire fence or on any ground considered
295
by Thailand to be part of its territory . When Prince Sihanouk
was asked about the barbed-wire fence, which had given some

cause for concern prior to the pilgrimage 29, the following

exchange occurred:

“When he mentioned the Thai construction of the
barbed-wire area, he described it as Thai encroachment
by several meters on Cambodian territory awarded it by

the International Court of Justice. He said that he would
not, however, make an issue of this matter as these few
meters were unimportant.” 297

4.46 While on the spot, Prince Si hanouk enthusiastically

spoke of “fraternizing going on at the barbed-wire barrier

between Thai and Cambodian soldiers” 29. A reporter from the

New York Times described his attitude towards the fence and the

Thai personnel beyond it as follows:

“Noting that Cambodian provincial guards had passed
some bottles of French cognac to the Thai border police
on the other side of the barbed-wire fence at the frontier,
only a few yards from the temple, the Prince told

295
See para. 4.42 above.
296See paras. 4.39 above.

297United States Embassy in Phnom Penh, Airgram to Department of State,
“Cambodian Official Reoccupation of Preah Vihear”, No. A-325, 10 January
1963, p. 5. (Emphasis added) [Annex 51].
298
United States Embassy in Phnom Penh, Airgram to Department of State,
“Cambodian Official Reoccupation of Preah Vihear”, No. A-325, 10 January
1963, p. 5 [Annex 51]. See also French Embassy in Phnom Penh,
Télégramme, No. 14.15, 5 January 1963 [Annex 44]. Le temple nous ayant été restitué, il n’y a plus de matière
à dispute.” 301

4.49 The same satisfaction was expressed in an interview
published in the Far Eastern Economic Review , on the 11 July

1963:

“M.: Monseigneur, y a-t-il une perspective quelconque

d’une reprise rapide des relations avec la Thaïlande ?

N.S.: Je préfère ne pas trop en parler. Nous devons
cesser de nous accuser réciproquement. Nous avons

utilisé des moyens pacifiques : la Cour internationale de
Justice à propos de Preah Vihear. Cette affaire conclue,
nous n’avons plus de raison de nous disputer. Mais les

relations diplomati302s avec la Thaïlande sont
problématiques.”

4.50 In this appeased context, Mr. Gussing continued his

conciliatory mission 303. In September 1963, he submitted a five-

point “friendly agreement” for consideration by Thailand and

Cambodia. These five points included:

“1. Resumption of diplomatic relations.
2. Respect for the territorial integrity of both countries.

301
La Vérité, 5 June 1963, “Interview du Prince Sihanouk par un journaliste
indien”, p. 2 [Annex 55]. (Emphasis added).
302Le Bulletin de l'Agence Khmère de Presse, “Interview du Prince Norodom

Sihanouk, Chef de l'Etat du Cambodge, accordée à ‘Far Eastern Economic
Review’”, 11 July 1963, p. 6 [Annex 56]. (Emphasis added).
303See J.F. Engers, Note to Mr. Gussing , 9 January 1963 and Second report
by the personal representative of the Secretary-Genera, 2 January 1963
[Annex 50] and Mission to Thailand and Cambodia, Third Report by the
Personal Representative of the Secr etary-General, 18 January 1963

[Annex 53].

150 Le temple nous ayant été restitué, il n’y a plus de matière
à dispute.” 301

4.49 The same satisfaction was expressed in an interview
published in the Far Eastern Economic Review , on the 11 July

1963:

“M.: Monseigneur, y a-t-il une perspective quelconque

d’une reprise rapide des relations avec la Thaïlande ?

N.S.: Je préfère ne pas trop en parler. Nous devons
cesser de nous accuser réciproquement. Nous avons

utilisé des moyens pacifiques : la Cour internationale de
Justice à propos de Preah Vihear. Cette affaire conclue,
nous n’avons plus de raison de nous disputer. Mais les

relations diplomati302s avec la Thaïlande sont
problématiques.”

4.50 In this appeased context, Mr. Gussing continued his

conciliatory mission 303. In September 1963, he submitted a five-

point “friendly agreement” for consideration by Thailand and

Cambodia. These five points included:

“1. Resumption of diplomatic relations.
2. Respect for the territorial integrity of both countries.

[Annex 53]. 309
seemed less willing . For the present proceedings,

Mr. Gussing’s reports are important not so much for what they

say, but more for what they do not say: indeed no further
disagreement regarding the Temp le or Thailand’s compliance

with the Judgment is recorded therein.

Negotiations for the Resumption of Diplomatic Relations

4.52 In 1966 a series of armed clashes occurred between the

Cambodian and Thai military in various places along the
boundary. The records show that the two States held opposing

views over to whom the responsib ility for these clashes was to

be attributed 310. And although, in April 1966, the Temple was

also the theatre of armed clashes 311, Thailand denied being

responsible for any attack upon the Khmer guards posted inside

the Temple. It must not be forgotten that, at the time, various

rebel movements, and in particular the Khmer Serei, were

operating in Cambodian territory.

4.53 It was in this context, that Cambodia sent various

communications to the United Nations, accusing Thailand of

aggression. In a letter addressed by the Permanent Mission of

Cambodia to the United Nations on 11 April 1966, Cambodia

309
Ibid., paras. 9, 11 and 12 in particular [Annex 57].
310United Nations , Yearbook of the United Nations, 1966, pp. 162-163
[Annex 74].
311
Ibid.

152 309
seemed less willing . For the present proceedings,

Mr. Gussing’s reports are important not so much for what they

say, but more for what they do not say: indeed no further

disagreement regarding the Temp le or Thailand’s compliance

with the Judgment is recorded therein.

Negotiations for the Resumption of Diplomatic Relations

4.52 In 1966 a series of armed clashes occurred between the

Cambodian and Thai military in various places along the

boundary. The records show that the two States held opposing

views over to whom the responsib ility for these clashes was to

be attributed 310. And although, in April 1966, the Temple was

also the theatre of armed clashes 31, Thailand denied being

responsible for any attack upon the Khmer guards posted inside

the Temple. It must not be forgotten that, at the time, various

rebel movements, and in particular the Khmer Serei, were

operating in Cambodian territory.

4.53 It was in this context, that Cambodia sent various

communications to the United Nations, accusing Thailand of

aggression. In a letter addressed by the Permanent Mission of

Cambodia to the United Nations on 11 April 1966, Cambodia

309Ibid., paras. 9, 11 and 12 in particular [Annex 57].
310
United Nations , Yearbook of the United Nations, 1966, pp. 162-163
[Annex 74].
311
Ibid. years of silence on the issue, and the reference to Article 94 (2)

took aback some of the members of the Security Council, who

wondered what the meaning of it could be. In fact, Cambodia’s
position as to the role of the Security Council on the issue was

anything but clear 318. As reported in a cable sent by the United

Kingdom’s Mission to the United Na tions, it appeared that the

Cambodian Government was sounding out the possibility of

taking,

“the Thai / Cambodian border dispute to the Security
Council under Article 94 of the Charter, presumably
using the I.C.J. judgment on the Preah Vihear Temple as
an entry card . This idea has apparently occurred to the

[Cambodian] Ambassador following discussion in the
corridors about the applicability of Article 94 in
connexion with South West Africa.” 319

And the United Kingdom’s Representative continued:

“It seems improbable that anything will come of this and
one view is that it is simply a personal initiative of the

Ambassador, designed to sound out the ground. No
doubt a Council discussion brought in this way would
provide the most favourable possible basis from the
Cambodian point of view, since they would clearly

appear as plaintiffs. On the other hand, given their recent
rejection of Rolz-Bennet as the Secretary General’s
personal representative, the moment would not seem
particularly opportune for them.” 320

318
See United Kingdom Mission to the United Nations, Note to Foreign
Office, No. 954, 5 May 1966 [Annex 66]; compare with British Embassy in
Phnom Penh, Cable to Foreign Office, 9 May 1966 [Annex 68].
319United Kingdom Mission to the United Nations, Cable to Foreign Office,
14 July 1966. (Emphasis added) [Annex 69].

320Ibid.

154years of silence on the issue, and the reference to Article 94 (2)

took aback some of the members of the Security Council, who

wondered what the meaning of it could be. In fact, Cambodia’s

position as to the role of the Security Council on the issue was
318
anything but clear . As reported in a cable sent by the United

Kingdom’s Mission to the United Na tions, it appeared that the

Cambodian Government was sounding out the possibility of

taking,

“the Thai / Cambodian border dispute to the Security

Council under Article 94 of the Charter, presumably
using the I.C.J. judgment on the Preah Vihear Temple as
an entry card . This idea has apparently occurred to the

[Cambodian] Ambassador following discussion in the
corridors about the applicability of Article 94 in
connexion with South West Africa.” 319

And the United Kingdom’s Representative continued:

“It seems improbable that anything will come of this and

one view is that it is simply a personal initiative of the
Ambassador, designed to sound out the ground. No
doubt a Council discussion brought in this way would
provide the most favourable possible basis from the

Cambodian point of view, since they would clearly
appear as plaintiffs. On the other hand, given their recent
rejection of Rolz-Bennet as the Secretary General’s

personal representative, the moment w320d not seem
particularly opportune for them.”

319United Kingdom Mission to the United Nations, Cable to Foreign Office,
14 July 1966. (Emphasis added) [Annex 69].
320
Ibid. border line fixed by the Court” 326, but confirmed that Cambodia

was not willing, at least for the moment, to put the matter before

the Security Council. When th e issue was brought up in the

discussion with Mr. Thanat Khoman, Thailand’s Minister of

Foreign Affairs, Mr. de Ribbing was reminded that the Court

had made no decision on the boun dary and that Thailand had
327
complied with the Judgment . However, 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. As far as the Temple was concerned, Cambodia insisted

on Thailand’s withdrawal of its reservation of rights in respect

of the Judgment, as a condition for their resuming diplomatic
328
relations . Thailand’s assurances that the reservation was
329
purely legal and had no irredentist purpose did not succeed in

taking Cambodia into immediately resuming the diplomatic
330
relations . Mr. de Ribbing’s mission, as in the case of

328Herbert de Ribbing, Note to the Secretary-General, “Report by the Special
Representative on his First Visit to Cambodia and Thailand and First Contact
with their High Authorities”, 13 September 1966, p. 14, para. 25 [Annex 72].
329
Chao Thai Newspaper, 24 July 1967, “Should seek future benefit. Quarrel
is detrimental to both sides” [Annex 75]; French Embassy in Bangkok,
Télégramme, No. 382/84, 27 July 1967 [Annex 76]; French Embassy in
Bangkok, Télégramme, No. 400/402, 4 August 1967 [Annex 77]; Herbert de
Ribbing, Cable to the Secretary-General, 16 October 1967, p. 2 [Annex 78].

330See French Embassy in Bangkok, Télégramme, No. 686/688, 2 November
1966 [Annex 73]; see also Herbert de Ribbing, Cable to the Secretary-
General, 16 October 1967, p. 2 [Annex 78].

156border line fixed by the Court” 326, but confirmed that Cambodia

was not willing, at least for the moment, to put the matter before

the Security Council. When th e issue was brought up in the

discussion with Mr. Thanat Khoman, Thailand’s Minister of

Foreign Affairs, Mr. de Ribbing was reminded that the Court

had made no decision on the boun dary and that Thailand had
327
complied with the Judgment . However, 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. As far as the Temple was concerned, Cambodia insisted

on Thailand’s withdrawal of its reservation of rights in respect

of the Judgment, as a condition for their resuming diplomatic
328
relations . Thailand’s assurances that the reservation was
329
purely legal and had no irredentist purpose did not succeed in

taking Cambodia into immediately resuming the diplomatic
330
relations . Mr. de Ribbing’s mission, as in the case of

326
Herbert de Ribbing, Note to the Secretary-General, “Report by the Special
Representative on his First Visit to Cambodia and Thailand and First Contact
with their High Authorities”, 13 September 1966, p. 6, para. 10 [Annex 72].
327
Ibid., p. 12, para. 20 [Annex 72]; see also Ministry of Foreign Affairs of
the Kingdom of Thailand, Memorandum of Conversation between the
Foreign Minister and Ambassador de Ri bbing, Special Representative of the
UN Secretary-General on 6 September 1966, p. 6 [Annex 71].
328
Herbert de Ribbing, Note to the Secretary-General, “Report by the Special
Representative on his First Visit to Cambodia and Thailand and First Contact
with their High Authorities”, 13 September 1966, p. 14, para. 25 [Annex 72].
329Chao Thai Newspaper, 24 July 1967, “Should seek future benefit. Quarrel
is detrimental to both sides” [Annex 75]; French Embassy in Bangkok,

Télégramme, No. 382/84, 27 July 1967 [Annex 76]; French Embassy in
Bangkok, Télégramme, No. 400/402, 4 August 1967 [Annex 77]; Herbert de
Ribbing, Cable to the Secretary-General, 16 October 1967, p. 2 [Annex 78].
330See French Embassy in Bangkok, Télégramme, No. 686/688, 2 November
1966 [Annex 73]; see also Herbert de Ribbing, Cable to the Secretary-

General, 16 October 1967, p. 2 [Annex 78]. As far as the Temple was concerned, Thailand received requests
334
from Cambodia to protect it .

4.59 During the period from 1975 to the early 1990 incidents

involving struggles between warring factions took place along

the border, including in the neighbourhood of the Temple,

However, these were internal to Cambodia, or in some instances

linked to foreign interventions. There is no record that any of

these tragic events were related to sovereignty over the Temple.

(d) The Post-1990 Period

4.60 After 1990, life resumed its course even on Phra Viharn.

For the return to normality to be possible, however, much

depended on the will of the local authorities, on the Cambodian

as well as the Thai sides, allowing the Temple to recover its

vocation as a place of worship and tourism.

4.61 The Governors of the adjoining Cambodian and Thai
provinces in the region of the Temple met in Thailand at the

Si Sa Ket provincial hall on 7 November 1991 to negotiate the

opening of the Temple to tourists 33. The result of their meeting

334Daily News, 12 July 1970, “[…] but sends border police to Phra Viharn”
[Annex 82]; Daily News, 24 March 1971, “Revealing conditions of Khmer
Soldiers on Khao Phra Viharn 'Cut off'. Thai side has to assist” [Annex 83];
Chao Thai Newspaper , 27 October 1971, “Thai and Khmer joined forces”
[Annex 84]; Daily News, 30 October 1971, “The Day Viet-Cong attacks”
[Annex 85]; Daily News, 3 November 1971, “Khao Phra Viharn Front is Not
Serious” [Annex 86].

33Summary of a meeting on the opening of Khao Phra Viharn as tourist site
between Thai side and Cambodian side, 7 November 1991 [Annex 87].

158As far as the Temple was concerned, Thailand received requests
334
from Cambodia to protect it .

4.59 During the period from 1975 to the early 1990 incidents

involving struggles between warring factions took place along

the border, including in the neighbourhood of the Temple,

However, these were internal to Cambodia, or in some instances

linked to foreign interventions. There is no record that any of

these tragic events were related to sovereignty over the Temple.

(d) The Post-1990 Period

4.60 After 1990, life resumed its course even on Phra Viharn.

For the return to normality to be possible, however, much

depended on the will of the local authorities, on the Cambodian

as well as the Thai sides, allowing the Temple to recover its

vocation as a place of worship and tourism.

4.61 The Governors of the adjoining Cambodian and Thai
provinces in the region of the Temple met in Thailand at the

Si Sa Ket provincial hall on 7 November 1991 to negotiate the

opening of the Temple to tourists 335. The result of their meeting

335Summary of a meeting on the opening of Khao Phra Viharn as tourist site
between Thai side and Cambodian side, 7 November 1991 [Annex 87]. 4.63 This was the route taken in 1930 by Prince Damrong and

his entourage. After crossing the stream, they proceeded

approximately a hundred metres to the south, where they were

met by the French reception committee at the flag pole some 20
339
metres from the foot of the northern staircase of the Temple .
This is the point where Cambodi a said, in its Reply, was the

boundary 34.

4.64 The 1991 agreement also provided that the “Thai side

shall construct restrooms (...) in the area on Khao Phra
341
Viharn.” As Lieutenant General Surapon Rueksumran

testified:

“At first, it was proposed that each side would bear the
cost in its own area on the respective side of the existing
fence. However, the Cambodian side claimed that it did

not have enough budgets and asked the Thai side to
provide construction materials and to build restrooms for
the tourists in the Temple of Phra Viharn. The Thai side
hesitated to accept the request because such area was

beyond Thai territory but it eventually accepted the
request. (...)

339See I.C.J. Pleadings, Temple of Preah Vihear , “Affidavit by M.C. Phun
Phitsamai Diskul, dated 9 June 1961”, Counter-Memorial of the Royal
Government of Thailand, Annex 39f, Vol. I, pp. 401 - 403.
340
See para.2.62. See also Photographs of Prince Damrong's visit to the
Temple of Phra Viharn (1930) [Annex 1] and Royal Thai Survey
Department, Sketch showing the location of the French flag pole in 1930 , 17
November 2011 [Annex 98].
341
Summary of a meeting on the opening of Khao Phra Viharn as tourist site
between Thai side and Cambodian side, 7 November 1991, para. 7.1
[Annex 87].

1604.63 This was the route taken in 1930 by Prince Damrong and

his entourage. After crossing the stream, they proceeded

approximately a hundred metres to the south, where they were

met by the French reception committee at the flag pole some 20
339
metres from the foot of the northern staircase of the Temple .
This is the point where Cambodi a said, in its Reply, was the

boundary 34.

4.64 The 1991 agreement also provided that the “Thai side

shall construct restrooms (...) in the area on Khao Phra
341
Viharn.” As Lieutenant General Surapon Rueksumran

testified:

“At first, it was proposed that each side would bear the
cost in its own area on the respective side of the existing
fence. However, the Cambodian side claimed that it did

beyond Thai territory but it eventually accepted the
request. (...)

4.67 Against this factual background, Cambodia’s claim that
it has only recently – in 2007 – discovered Thailand’s

interpretation of the Judgment, on a map produced

unilaterally346, is puzzling. As far as the Temple is concerned,

this map only illustrates the pl acement of the 1962 barbed-wire

fence. From the very beginning, Cambodia knew precisely

where the barbed-wire fence was located. The events and

documents surrounding Prince Si hanouk’s visit leave no doubt

as to that 34. This is further confirmed by the 1962 Aide-

Mémoire on the Khmero-Thai Relations published by
348
Cambodia’s Ministry of Foreign Affairs . This Aide-mémoire

presents on pages 76 and 77 phot ographs and a sketch with the

placement of the barbed-wire fence.

4.68 Cambodia claims that it was in 2007 when Thailand’s

interpretation of the Judgment changed:

“After 1962, and until the events following the process

of including the Temple on UNESCO’s list of World
Heritage sites in 2007, no offici al claims were made by

345Request 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. 27.
346Ibid., para. 14.
347
See paras. 4.40-4.47 above.
348See Ministry of Foreign Affairs of the Kingdom of Cambodia, Aide-
mémoire sur les relations khméro-thaї landaises, circa November 1962

[Annex 34].

162 differed from Cambodia’s cons istent interpretation of
it.”345

4.67 Against this factual background, Cambodia’s claim that
it has only recently – in 2007 – discovered Thailand’s

interpretation of the Judgment, on a map produced

unilaterally 34, is puzzling. As far as the Temple is concerned,

this map only illustrates the pl acement of the 1962 barbed-wire

fence. From the very beginning, Cambodia knew precisely

where the barbed-wire fence was located. The events and

documents surrounding Prince Si hanouk’s visit leave no doubt

as to that 347. This is further confirmed by the 1962 Aide-

Mémoire on the Khmero-Thai Relations published by
348
Cambodia’s Ministry of Foreign Affairs . This Aide-mémoire

presents on pages 76 and 77 phot ographs and a sketch with the

placement of the barbed-wire fence.

4.68 Cambodia claims that it was in 2007 when Thailand’s

interpretation of the Judgment changed:

“After 1962, and until the events following the process

of including the Temple on UNESCO’s list of World
Heritage sites in 2007, no offici al claims were made by

345Request for Interpretation of the Judgment of 15 June 1962 in the Case
Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia

[Annex 34]. (e) In Any Case, Disputes over Implementation Are outside the

Scope of Article 60

4.70 Cambodia’s Request is based on the assumption that the

finding in paragraph 2 of the dispositif entails a continuing legal

obligation on Thailand to withdraw from the territory the Court

found to be under Cambodia’s sovereignty. This assumption is
353 354
false on both legal and factual grounds . Admitting, for the

sake of argument, that such an assumption were true, quod non,
this would mean that Cambodia is complaining about a violation

of the 1962 Judgment: under Cambodia’s argument, Thailand

never withdrew yet somehow, at some point, managed to

return 355. Either way this would be a violation of paragraph 2 of

the dispositif, a matter of implementation not of interpretation.

But in any event, Thailand withdrew and cannot be ordered now

to do something it already did 356.

4.71 Cambodia goes even further and accuses Thailand,

contrary to the whole factual record, of secretly aiming to take

back the Temple. This is implied in statements such as the

following: “Everything which has reoccurred since 2008 is thus

no more than Thailand demonstr ating the impossibility of it

353See paras. 5.52-5.58 below.

354See paras. 5.60-5.62 below.
355
See 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. 44. See also paras 5.66-5.79 below.
356
See also para. 5.80 below.

164 (e) In Any Case, Disputes over Implementation Are outside the

Scope of Article 60

4.70 Cambodia’s Request is based on the assumption that the

finding in paragraph 2 of the dispositif entails a continuing legal
obligation on Thailand to withdraw from the territory the Court

found to be under Cambodia’s sovereignty. This assumption is

false on both legal 353and factual grounds 354. Admitting, for the

sake of argument, that such an assumption were true, quod non,

this would mean that Cambodia is complaining about a violation

of the 1962 Judgment: under Cambodia’s argument, Thailand

never withdrew yet somehow, at some point, managed to
355
return . Either way this would be a violation of paragraph 2 of

the dispositif, a matter of implementation not of interpretation.

But in any event, Thailand withdrew and cannot be ordered now
356
to do something it already did .

4.71 Cambodia goes even further and accuses Thailand,

contrary to the whole factual record, of secretly aiming to take

back the Temple. This is implied in statements such as the

following: “Everything which has reoccurred since 2008 is thus

no more than Thailand demonstr ating the impossibility of it

353
See paras. 5.52-5.58 below.
354See paras. 5.60-5.62 below.
355
See 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. 44. See also paras 5.66-5.79 below.
356
See also para. 5.80 below. 359
forced compliance with the 1962 Judgment” . The expression
(forced compliance – in the French original, exécution forcée) is

extremely confusing since it s hows that Cambodia mistakes the

Court for the Security Council. It nonetheless illustrates that

Cambodia has only just discovered that it has a problem with the

way the Judgment was implemented nearly half a century ago.

Rather than a clarification, this is actually a statement against

interest: it admits that, even if taken on its own flawed premises,
Cambodia’s Request is inadmissible.

B. Cambodia’s Disregard for the Principle of Res Judicata

4.73 The exceptional possibility for a State unilaterally to

seise the Court under Article 60 of the Statute must not be

diverted into an attempt to impair the res judicata of the main
judgment. This is apparent in th e drafting of this article and in

the succession of the sentences forming it: the first refers to the

finality of the Judgment and the second opens the possibility for

the Court to interpret it:

“The judgment is final and without appeal. In the event
of dispute as to the meani ng or scope of the judgment,
the Court shall construe it upon the request of any
party.”360

359Request 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. 31.
360
Article 60 of the Statute of the International Court of Justice.

166forced compliance with the 1962 Judgment” 35. The expression

(forced compliance – in the French original, exécution forcée) is

extremely confusing since it s hows that Cambodia mistakes the

Court for the Security Council. It nonetheless illustrates that

Cambodia has only just discovered that it has a problem with the

way the Judgment was implemented nearly half a century ago.
Rather than a clarification, this is actually a statement against

interest: it admits that, even if taken on its own flawed premises,

Cambodia’s Request is inadmissible.

B. Cambodia’s Disregard for the Principle of Res Judicata

4.73 The exceptional possibility for a State unilaterally to

seise the Court under Article 60 of the Statute must not be

diverted into an attempt to impair the res judicata of the main

judgment. This is apparent in th e drafting of this article and in

the succession of the sentences forming it: the first refers to the

finality of the Judgment and the second opens the possibility for
the Court to interpret it:

“The judgment is final and without appeal. In the event
of dispute as to the meani ng or scope of the judgment,
the Court shall construe it upon the request of any
360
party.”

360Article 60 of the Statute of the International Court of Justice. “The real purpose of the request must be to obtain an
interpretation of the judgment. This signifies that its
object must be solely to obtain clarification of the
meaning and the scope of what the Court has decided

with binding force, and not to obtain an answer to
questions not so decided. Any other construction of
Article 60 of the Statute w ould nullify the provision of
the article that the judgm ent is final and without
appeal.” 362

4.76 As will be seen below in further detail, the Request for
interpretation revives two claims relating to the status of the

Annex I map and to the delim itation of the “boundary in the

disputed region in the neighbourhood of the Temple of Preah

Vihear” 363; these two claims had been expressly excluded by the

Court from the dispositif, and thus were clearly placed outside

the scope of the res judicata. And yet, they are the very subject

matter of Cambodia’s Request for interpretation. Using as a
pretext the existence of a dispute over the reas ons in the 1962

Judgment, where the two issues had been touched upon, it asks

the Court to introduce into the dispositif of a judgment on

interpretation what the Court had excluded from the operative

part in 1962.

4.77 In so doing, Cambodia acts in a way similar to Colombia
in the Asylum Case:

36Request for Interpretation of the Judgment of November 20th, 1950, in the
asylum case, Judgment of November 27th, 1950, I.C.J. Reports 1950, p. 402.
363
Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962 , p. 11. See also paras.
2.66-2.73 above.

168 “The real purpose of the request must be to obtain an
interpretation of the judgment. This signifies that its
object must be solely to obtain clarification of the
meaning and the scope of what the Court has decided

4.76 As will be seen below in further detail, the Request for
interpretation revives two claims relating to the status of the

Annex I map and to the delim itation of the “boundary in the

disputed region in the neighbourhood of the Temple of Preah

Vihear” 36; these two claims had been expressly excluded by the

Court from the dispositif, and thus were clearly placed outside

the scope of the res judicata. And yet, they are the very subject

matter of Cambodia’s Request for interpretation. Using as a
pretext the existence of a dispute over the reas ons in the 1962

Judgment, where the two issues had been touched upon, it asks

the Court to introduce into the dispositif of a judgment on

interpretation what the Court had excluded from the operative

part in 1962.

4.77 In so doing, Cambodia acts in a way similar to Colombia
in the Asylum Case:

36Request for Interpretation of the Judgment of November 20th, 1950, in the
asylum case, Judgment of November 27th, 1950, I.C.J. Reports 1950, p. 402.
363
Case Concerning the Temple of Preah Vihear (Cambv. Thailand),
Merits, Judgment of 15 June 1962, I.C.J. Reports 1962 , p. 11. See also paras.
2.66-2.73 above. While the reasons may be used to clarify, if need be, the

meaning of the dispositif, these reasons are not in themselves res

judicata. The Permanent Court of International Justice stated it

in perfectly clear terms:

“It is perfectly true that all the parts of a judgment
concerning the points in dis pute explain and complete
each other and are to be take n into account in order to
determine the precise meaning and scope of the
operative portion. (...) But it by no means follows that

every reason given in a decision constitutes a decision;
(...) [T]he Court is unable to see any ground for
extending the binding force att aching to the declaratory
judgment on the point decided to reasons which were

only intended to explain the declaration contained in the
operative portion of this judgment and all the more so if
these reasons relate to points of law on which the High
Commissioner was not asked to give a decision.” 365

4.80 This cardinal principle of international litigation was

equally understood by arbitral tr ibunals as being of strict

application:

“L’opinion que le juge exprime incidemment, sans la
traduire par un dispositif, ne crée toutefois pas, en
principe, chose jugée. S’ il est appelé à trancher
positivement la question, il peut, après nouvel examen,
revenir sur une opinion première. Cette dernière ne peut

a fortiori l366 un autre juge, qui doit dès lors décider
librement.”

365Polish Postal Service in Danzig, Advisory Opinion, 1925, P.C.I.J.
Series B, No. 11, p. 30.

366Junghans case, Second Part, Award, 1940, Germany v. Romania ,
Reports of International Arbitral Awards, Vol. III, p. 1889.

170While the reasons may be used to clarify, if need be, the
meaning of the dispositif, these reasons are not in themselves res

judicata. The Permanent Court of International Justice stated it

in perfectly clear terms:

“It is perfectly true that all the parts of a judgment
concerning the points in dis pute explain and complete
each other and are to be take n into account in order to

determine the precise meaning and scope of the
operative portion. (...) But it by no means follows that
every reason given in a decision constitutes a decision;
(...) [T]he Court is unable to see any ground for

extending the binding force att aching to the declaratory
judgment on the point decided to reasons which were
only intended to explain the declaration contained in the
operative portion of this judgment and all the more so if
these reasons relate to points of law on which the High
365
Commissioner was not asked to give a decision.”

4.80 This cardinal principle of international litigation was

equally understood by arbitral tr ibunals as being of strict

application:

“L’opinion que le juge exprime incidemment, sans la
traduire par un dispositif, ne crée toutefois pas, en

principe, chose jugée. S’ il est appelé à trancher
positivement la question, il peut, après nouvel examen,
revenir sur une opinion première. Cette dernière ne peut
a fortiori lier un autre juge, qui doit dès lors décider
366
librement.”

365 Polish Postal Service in Danzig, Advisory Opinion, 1925, P.C.I.J.
Series B, No. 11, p. 30.
366
Junghans case, Second Part, Award, 1940, Germany v. Romania ,
Reports of International Arbitral Awards, Vol. III, p. 1889. 4.83 This approach for establishing the res judicata was

recently applied by the Court in order to assess the admissibility

of Honduras’ request for intervention in the Territorial and
Maritime Dispute (Nicaragua v. Colombia) case. The Court had

to determine whether the 2007 Judgment in the Territorial and

Maritime Dispute between Nicaragua and Honduras in the

Caribbean Sea case was a bar to the request for intervention,

essentially because Honduras wa s basing its claims on matters

already decided by the Court. In order to determine the extent of

the res judicata of the 2007 Judgment, the Court first analysed

the text of the opera tive clause, “which indisputably has the
force of res judicata” 369. Afterwards, the Court referred to the

reasons which were “an essential step leading to the dispositif of

that Judgment” 37, but only because “[w]ithout such reasoning,

it may be difficult to understand why the Court did not fix an

endpoint in its decision.”

4.84 For determining the scope of the binding force of a

judgment, it is therefore imperative to examine first the scope of
the dispositif itself. In 1962, the disput e was about territorial

sovereignty and the other submi ssions recognized as admissible

by the Court derived from that dispute 371. Therefore, the scope

of the operative clause is necessarily limited to territorial

sovereignty. The adjudication of territorial sovereignty is

369
Territorial and Maritime Dispute (Nicaragua v. Colombia), Application
by Honduras for Permission to Intervene, I.C.J. Judgment, 4 May 2011,
para. 69. (Emphasis added).
37Ibid., para. 70.
371
See para. 4.76 above.

1724.83 This approach for establishing the res judicata was

recently applied by the Court in order to assess the admissibility

of Honduras’ request for intervention in the Territorial and
Maritime Dispute (Nicaragua v. Colombia) case. The Court had

to determine whether the 2007 Judgment in the Territorial and

Maritime Dispute between Nicaragua and Honduras in the

Caribbean Sea case was a bar to the request for intervention,

essentially because Honduras wa s basing its claims on matters

already decided by the Court. In order to determine the extent of

the res judicata of the 2007 Judgment, the Court first analysed

the text of the opera tive clause, “which indisputably has the
force of res judicata” 369. Afterwards, the Court referred to the

reasons which were “an essential step leading to the dispositif of

that Judgment” 370, but only because “[w]ithout such reasoning,

it may be difficult to understand why the Court did not fix an

endpoint in its decision.”

4.84 For determining the scope of the binding force of a

judgment, it is therefore imperative to examine first the scope of
the dispositif itself. In 1962, the disput e was about territorial

sovereignty and the other submi ssions recognized as admissible

by the Court derived from that dispute 371. Therefore, the scope

of the operative clause is necessarily limited to territorial

sovereignty. The adjudication of territorial sovereignty is

369
Territorial and Maritime Dispute (Nicaragua v. Colombia), Application
by Honduras for Permission to Intervene, I.C.J. Judgment,4 May 2011,
para. 69. (Emphasis added).
370Ibid., para. 70.
371
See para. 4.76 above. request for interpretation. The link between the three acts – the

Application instituting the Pr oceedings, the Judgment on the
375
merits and the Request for interpretation – is inextricable. It is

by “having regard to the manner in which the dispute was
376
defined” in the act instituting the main proceedings that the

Court determines the limits of the judgment to be interpreted

and, consequently, of the request for interpretation:

“[A]n interpretation -given in accordance with Article 60
of the Statute- of the judgment (...) cannot go beyond the
limits of that judgment itself, which are fixed by the
special agreement.” 377

4.87 Finding no support for its Reque st for interpretation in

paragraph 1 of the 1962 dispositif, Cambodia turns to paragraph
2, in an unconvincing attempt to comply with the conditions of

admissibility. It nonetheless fails to identify any matter to be

interpreted therein. The section in the Request is drafted in the

form of a quotation of paragraph 2 of the operative clause of the

1962 Judgment, an academic analysis of the obligation stated in

this point, and two incidental sentences reading like comments

by Cambodia, not as questions addressed to the Court or bearing

on any obscurity of the dispositif of the Judgment:

375
See also the Judgment on the Preliminary Objections ( Case concerning
the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary
Objections, Judgment of 26 May 1961, I.C.J. Reports 1961 , pp. 19 or 22)
which is echoed in the Judgment on the Merits (Case Concerning the Temple
of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962,
I.C.J. Reports 1962, p. 14).
376
Interpretation of Judgment No. 3, Judgment, Chamber of Summary
Proceedings, 1925, P.C.I.J. Series A, No. 4, p. 6.
377
Ibid., p. 7.

174request for interpretation. The link between the three acts – the

Application instituting the Pr oceedings, the Judgment on the
375
merits and the Request for interpretation – is inextricable. It is
by “having regard to the manner in which the dispute was

defined” 376in the act instituting the main proceedings that the

Court determines the limits of the judgment to be interpreted

and, consequently, of the request for interpretation:

“[A]n interpretation -given in accordance with Article 60
of the Statute- of the judgment (...) cannot go beyond the
limits of that judgment itself, which are fixed by the
377
special agreement.”