Client Alerts

International Court of Justice issues order for provisional measures

Volterra Fietta Client Alert
16 August 2011

On 18 July 2011, the International Court of Justice (the “ICJ” or the “Court”) issued an order for provisional measures directed at both Thailand and Cambodia establishing a provisional demilitarised zone on the border between the two States. The ICJ’s order was made following Cambodia’s request, dated 28 April 2011, for interpretation of the Court’s judgment of 15 June 1962 (the “1962 Judgment”) and its simultaneous request for the Court to indicate provisional measures.

Background

The Temple of Preah Vihear, an 11th century Hindu temple (the “Temple”), is located close to the border between Cambodia and Thailand. The area around the Temple has been long disputed by the two countries. In its 1962 Judgment the ICJ ruled on sovereignty over the Temple, determining that it was “situated in territory under the sovereignty of Cambodia” and that Thailand was “under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory”.

Although Thailand essentially complied with the 1962 Judgment, the area around the Temple has recently experienced renewed clashes between Cambodia and Thailand. Specifically, armed incidents occurred in 2008 after UNESCO accepted Cambodia’s request to list the Temple as a World Heritage site. Further violent clashes have broken out since, including earlier this year.

Cambodia’s application for interpretation of the 1962 Judgment

In making its request for interpretation of the 1962 Judgment, Cambodia invoked the jurisdiction of the Court by claiming that, while in principle any request for interpretation pursuant to Article 60 of the Statute of the International Court of Justice (the “Statute”) must relate to the operative part of a judgment, it could also relate to those reasons for a judgment which were inseparable from the operative part.

In this regard, Cambodia’s application referred to the Court’s finding that the Temple was situated in territory under the sovereignty of Cambodia. Cambodia argued that its sovereign territory was specifically delimited by a map drawn up by the Franco-Siamese Mixed Commission in 1907 which the Court, in 1962, had implicitly recognised as the valid border between Thailand and Cambodia. It argued that Thailand, by contrast, believed the border had yet to be established and was thus seeking to claim sovereignty over territory adjacent to the Temple.

Cambodia also sought to establish the Court’s jurisdiction by referring to the Court’s order in 1962 that Thailand withdraw its military and police forces. Cambodia claimed that this obligation went beyond a withdrawal from only the precincts of the Temple itself and extended to the area of the Temple in general. It further claimed that it should be understood as a general and continuing obligation.

Cambodia’s request for provisional measures

In simultaneously applying for provisional measures to be ordered, Cambodia invoked the jurisdiction of the Court pursuant to Article 41 of the Statute and Article 73 of the Rules of Court. Cambodia’s primary reasoning was that, if the Court did not order provisional measures urgently, “and if Thailand persisted in its conduct, the damage caused to the Temple of Preah Vihear, as well as the loss of life and the human suffering as a result of those armed clashes, would become worse”. Cambodia further claimed that provisional measures were required in order to safeguard its rights under the 1962 Judgment and to avoid aggravation of the dispute.

Thailand’s position

Thailand maintained that there was no dispute as to the meaning or scope of the 1962 Judgment, which Thailand had implemented in good faith. The purpose of the 1962 case was not, Thailand argued, to delimit the border between the countries. Asserting that Cambodia was trying to protect rights, therefore, which were not subject to the Court’s direction in the 1962 Judgment, Thailand argued that the Court lacked jurisdiction to rule on Cambodia’s request for interpretation and, consequently, to indicate the provisional measures requested. It asked the Court to remove the case from the General List.

The Court’s ruling on jurisdiction

The Court dismissed Thailand’s arguments as to jurisdiction. If the Court found the existence of a “dispute” within the meaning of Article 60, it could entertain Cambodia’s request for interpretation. The Court noted that “Article 60 of the Statute does not impose any time-limit on requests for interpretation”.

The Court, determining that a dispute within the meaning of Article 60 did, in fact, appear to exist, consequently declared that it had the competence to indicate provisional measures if the necessary conditions were satisfied.

Conditions necessary for provisional measures to be ordered

To be able to indicate provisional measures under Articles 41 and 60 of the Statute, the Court specified that it was required to consider three necessary conditions:

First, whether the rights which Cambodia claimed to derive from the judgment in question, in the light of its interpretation of that judgment, are at least plausible;

Second, whether there is a link between those alleged rights and the provisional measures sought; and

Finally, whether the situation was one of urgency, i.e., a situation where irreparable prejudice could be caused to Cambodia’s alleged rights if the Court refused to order provisional measures.

The Court ruled that the rights claimed by Cambodia – namely, respect for Cambodia’s sovereignty in the area of the Temple and its right to territorial integrity – were plausible. It further stated that, while this conclusion did not prejudge the outcome of the main proceedings, it was sufficient for the purposes of considering the request for provisional measures. The Court also determined that, as the provisional measures sought were aimed at protecting the rights invoked by Cambodia in its request for interpretation, the necessary link had been established. Finally, the Court recognised that armed clashes had led to fatalities, injuries and the displacement of local inhabitants and damage to the Temple and to the property associated with it. It found that those circumstances could be causing irreparable prejudice to Cambodia’s rights.

The Court’s order for provisional measures

Despite fulfilling the conditions necessary for provisional measures, the Court declined to order those specific measures requested by Cambodia. Pursuant to Article 75(2) of the Rules of Court and the Court’s previous practice, the Court observed that it had the power to indicate provisional measures which were not asked for by the Parties but which seemed necessary to the Court. As a result, the Court ordered that:
both parties establish a provisional demilitarized zone in a particular area around the Temple (as identified on a sketch map attached to the judgment);

Thailand take all necessary measures to allow for Cambodia’s free access to the Temple and for fresh supplies to its non-military personnel;

the parties co-operate with the Association of Southeast Asian Nations, including by allowing its observers to have access to the provisional demilitarized zone;

both parties refrain from any action that may aggravate the dispute; and

both parties inform the Court of their compliance with the provisional measures ordered.

Analysis

Several aspects of the Court’s judgment on provisional measures are of particular interest.
Most importantly, perhaps, the Court took the unusual step of ordering the parties to withdraw their military not only from territory under dispute, but also from territory indisputably under their own sovereignty. The decision will no doubt cause much academic debate as to whether the Court exceeded its authority in so doing. On the one hand, of course, it is generally accepted that the Court may issue any orders aimed at preventing irreparable damage or continued aggravation. On the other hand, ordering States to withdraw their military from their own sovereign territory is an expansive demand and one which appears to extend the Court’s competence to the discomfort of some of its own members – a number of whom issued dissenting opinions. Judge Donoghue, in particular, expressed concern that the Court, by potentially exceeding the limits of its jurisdiction, might dissuade States from exposing themselves to its voluntary jurisdiction in the future.
Other aspects of the judgment are also worthy of note. These aspects are pertinent to all applications for provisional measures, including those regarding investment treaties. Inter alia, the Court confirmed that:
the relevant conditions necessary for provisional measures to be indicated in interpretation cases under Article 60 of the Statute are the same as those previously established by the Court in non-interpretation cases, i.e., the need for rights which are at least plausible; a link between those alleged rights and the provisional measures sought; and the need for a situation of urgency, where a party’s rights might be irreparably prejudiced if the Court refused to order provisional measures;
it has the competence to order provisional measures even if those measures are not specifically requested by an applicant State;
a request for interpretation pursuant to Article 60 of the Statute has no time-limit; and
even if the basis for jurisdiction in the original case lapses (as Thailand’s had), Article 60 continues to provide a valid basis for jurisdiction.