BP has repeatedly blogged on the dispute between Thailand and Cambodia over Preah Vihear and surrounding territory. On April 28, the Kingdom of Cambodia filed an Application requesting interpretation of the Judgment rendered on 15 June 1962 by the International Court of Justice (ICJ) in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand). The filing of such an application gives rise to the opening of a new case. Together with that Application, Cambodia submitted an urgent request for the indication of provisional measures. As blogged then the request was for the Court to issue the following provisional measures pending delivery of its judgment:
 ⎯ an immediate and unconditional withdrawal of all Thai forces from those parts of Cambodian territory situated in the area of the Temple of Preah Vihear;
 ⎯ a ban on all military activity by Thailand in the area of the Temple of Preah Vihear;
[3[ ⎯ that Thailand refrain from any act or action which could interfere with the rights of Cambodia or aggravate the dispute in the principal proceedings”.
Furthermore, “[b]ecause of the gravity of the situation, and for the reasons expressed above, Cambodia respectfully requests the Court to indicate these measures as a matter of urgency, and to fix a date as soon as possible for the subsequent proceedings”
First, the Court at paragraph 30 stated “[w]hereas a dispute thus appears to exist between the Parties as to the meaning or scope of the 1962 Judgment, and whereas it therefore appears that the Court may, pursuant to Article 60 of the Statute, entertain the request for interpretation of the said Judgment submitted by Cambodia; whereas, in consequence, the Court cannot accede to the request by Thailand that the case be removed from the General List; and whereas there is a sufficient basis for the Court to be able to indicate the provisional measures requested by Cambodia, if the necessary conditions are fulfilled”.
BP: In essence, the Court views it has jurisdiction as this is an issue. The press release states this was unanimous. Once the court views it has jurisdiction, it then looks at whether provisional measures can be issued:
39. Whereas, in the operative clause of its 1962 Judgment, the Court declared in particular that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia, and that Thailand was under an obligation to withdraw any military forces stationed at the Temple or in its vicinity on Cambodian territory; whereas the interpretation of the 1962 Judgment put forward by Cambodia in order to assert its rights ⎯ namely, the right to respect for its sovereignty in the area of the Temple of Preah Vihear and its right to territorial integrity ⎯ is that the Court was only able to reach these conclusions once it had recognized the existence of a frontier between the two States and found that the Temple and its “vicinity” were on the Cambodian side of that frontier; whereas, according to Cambodia, the phrase “vicinity on Cambodian territory” includes the area surrounding the precincts of the Temple; and whereas, consequently, in Cambodia’s opinion, Thailand has a continuing obligation not to infringe Cambodia’s sovereignty over that area;
40. Whereas the rights claimed by Cambodia, in so far as they are based on the 1962 Judgment as interpreted by Cambodia, are plausible;
41. Whereas this conclusion does not prejudge the outcome of the main proceedings; whereas it is nonetheless sufficient for the purposes of considering the present request for the indication of provisional measures.
45. Whereas the provisional measures sought thus aim to protect the rights that Cambodia invokes in its request for interpretation; and whereas the necessary link between the alleged rights and the measures requested is therefore established;
BP: Note that the claims in paragraph 39 are just claims by Cambodia which the Court is repeating, but because the Court views the claims are plausible they Court agrees to consider issuing provisional measures as requested by Cambodia. The Court then assesses the situation on why provisional measures are needed as follows (the below is just after the court repeats claim by both Thailand and Cambodia that the other side is responsible):
53. Whereas, at this stage in the proceedings, the Court is only required to consider whether the circumstances brought to its attention call for the indication of provisional measures; whereas, in this case, the Court notes that it is apparent from the case file that incidents have occurred on various occasions between the Parties in the area of the Temple of Preah Vihear; whereas it observes that, since 15 July 2008, armed clashes have taken place and have continued to take place in that area, in particular between 4 and 7 February 2011, leading to fatalities, injuries and the displacement of local inhabitants; whereas damage has been caused to the Temple and to the property associated with it; whereas the Court notes that, on 14 February 2011, the Security Council called for a permanent ceasefire to be established between the two Parties and expressed its support for ASEAN in seeking a solution to the conflict; whereas the Chair of ASEAN therefore proposed to the Parties that observers be deployed along their boundary, but whereas this proposal was not put into effect, however, because the Parties failed to agree on how it should be implemented; and whereas, in spite of these attempts to settle the dispute peacefully, there was a further exchange of fire between the Parties on 26 April 2011 in the area of the Temple
54. Whereas the Court observes that the existence of a ceasefire “does not . . . deprive [it] of the rights and duties pertaining to it in the case brought before it” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 37); and whereas it is therefore not obliged to establish, at this stage in the proceedings, whether the oral ceasefire negotiated between the Parties’ military commanders on 28 April 2011 did or did not cover the area of the Temple of Preah Vihear;
55. Whereas the rights which Cambodia claims to hold under the terms of the 1962 Judgment in the area of the Temple might suffer irreparable prejudice resulting from the military activities in that area and, in particular, from the loss of life, bodily injuries and damage caused to the Temple and the property associated with it;
56. Whereas there are competing claims over the territory surrounding the Temple; whereas the situation in the area of the Temple of Preah Vihear remains unstable and could deteriorate; whereas, because of the persistent tensions and absence of a settlement to the conflict, there is a real and imminent risk of irreparable prejudice being caused to the rights claimed by Cambodia; and whereas there is urgency;
BP: That is fairly self-explanatory i.e the situation is serious so we can issue measures. So far Cambodia will be happy and Thailand less so (although BP doesn’t think the Thai side ever thought that the ICJ would rule otherwise).
Now, we get to the essence of the ICJ decision below and, together with above, the reasoning behind it. The first provisional measure:
61. Whereas the area of the Temple of Preah Vihear has been the scene of armed clashes between the Parties and whereas the Court has already found that such clashes may reoccur; whereas it is for the Court to ensure, in the context of these proceedings, that no irreparable damage is caused to persons or property in that area pending the delivery of its Judgment on the request for interpretation; whereas, moreover, in order to prevent irreparable damage from occurring, all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia; and whereas, therefore, the Court considers it necessary, in order to protect the rights which are at issue in these proceedings, to define a zone which shall be kept provisionally free of all military personnel, without prejudice to normal administration, including the presence of non-military personnel necessary to ensure the security of persons and property;
63. Whereas both Parties, in order to comply with this Order, shall withdraw all military personnel currently present in the zone as thus defined; whereas both Parties shall refrain not only from any military presence within that provisional demilitarized zone, but also from any armed activity directed at the said zone;
NOTE: See larger image here. This image is from the ICJ.
[UPDATE: A reader sends an approximate map they have created which shows the disputed area
BP: The press release states that the Court ruled on the above 11 to 5. Note that the demilitarized zone is temporary as it is pending the judgment of the final decision. Also, the DMZ is not only related to troops being located in the area, but also from armed activity directed at the zone (ie. firing of weapons into the zone etc).
The ThaiPBS reporter (Sermsuk) following the case states that based on the sketch-map from the ICJ he notes that the DMZ is larger than the 4.6 sq km disputed area and that it also stretches into Thai territory
Neither side will be particularly pleased about this aspect of the decision as they did not get precisely what they wanted although Cambodia gets all Thai troops withdrawn and there is a buffer zone outside the 4.6 sq. km now on the Thai side where no Thai troops are allowed, but Cambodia has to withdraw its troops from the temple which was not its desired outcome. Then again both sides will be happy, or ‘satisfied’ as both Foreign Ministers have expressed, that the other side has not get what they want.
On one hand, Cambodia won’t be satisfied with the inclusion of Preah Vihear in the DMZ, but then again the troops are more situated their for strategic (and also to infuriate the Thai side!) reasons. It is difficult for Thailand to fire on such soldiers lest they hit the temple and given its location in terms of height, it is to Cambodia’s strategic advantage if they want to attack the Thai side to be located at that site. The strategic reason to be there is less relevant with the DMZ and the buffer zone on the Thai side.
btw, if anyone sees any map with the 4.6 sq. km. disputed area and with an overlay of the DMZ, please alert BP by e-mail email@example.com OR @bangkokpundit on twitter.
On the next provisional measure:
64. Whereas, in addition, both Parties shall continue the co-operation which they have entered into within ASEAN and, in particular, allow the observers appointed by that organization to have access to the provisional demilitarized zone
BP: This was a 15 to 1 decision. Cambodia will be more pleased as they have wanted the ASEAN observers. The Thailand military will be dissatisfied although from a civilian Thai government perspective, BP does not think the Thai side will be that unhappy as the Cambodians troops also have to be withdrawn from Preah Vihear, which is included in the DMZ, and this was one of the Thai demands all along. Also, while the ruling is “against” the Thai side, it is much easier to say ‘we are complying with the ICJ decision in allowing observers’ than saying the observers is a result of an agreement with the Cambodian and the Thai negotiators hence could be attached by Thai nationalists for selling out (i.e the court decision provides cover).
On the final provisional measure:
65. Whereas it is not disputed that the Temple of Preah Vihear itself belongs to Cambodia; whereas Cambodia must, in all circumstances, have free access to the Temple and must be able to provide fresh supplies to its non-military personnel; and whereas Thailand must take all necessary measures in order not to obstruct such free and uninterrupted access.
BP: This counts as a victory for the Cambodian side, and was a another 15 to 1 decision, but it is less important than the other provisional measures.
Finally, in another 15 to 1 decision (the same judge is in the minority each time!) the Court decides that until it has “rendered its judgment on the request for interpretation, it shall remain seised of the matters which form the subject of this Order”.
BP: This is just UN-speak for saying that the Court can reconsider the matter if fact/events change – see here for a further explanation – i.e if one of the sides clearly fails to comply?
What does this mean for the new government? In 2008, the dispute was one of the rationales used by the PAD for their protest and was seized upon by the then opposition Democrats. BP has no doubt that the PAD will not be happy with the decision – given such “provocative” statements by the court that the Thai sides “does not dispute the fact that the Temple of Preah Vihear is situated in Cambodian territory” – but there is a pathway for the new government with this decision. All they need to do is to strictly follow it and it will be hard for the Democrats, who will be in opposition, to argue against it given Kasit has expressed satisfaction with the decision. Allowing ASEAN observers without the decision could have created a political argument, but it is hard to see how it could now.