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The Ghosts of the Temple of Preah Vihear/Phra Viharn in the 2013 Judgment

Published online by Cambridge University Press:  22 August 2014

Victor KATTAN
Victor KATTAN*
Affiliation:
National University of Singapore, Singaporevkattan@nus.edu.sg
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Abstract

This paper revisits the ICJ's original 1962 Decision in the case of the Temple of Preah Vihear, examining its legacy in the light of the 2013 Decision. The 2013 Decision, when read in isolation from the 1962 Judgment, does not provide any indication that the original Judgment was controversial. In contrast to the unanimous Decision of the Court in 2013, in 1962 three of the judges appended Dissenting Opinions. They dissented because they could not agree with the majority that the Temple was located in Cambodia. The 1962 Judgment was controversial because it relied on an inaccurate sketch map and deduced Thai acquiescence from a single photograph of a brief meeting between a dead Thai prince and a dead French official. The unanimous decision of the 2013 Court therefore appears to be to a conscious decision by the Court to reinforce a Judgment that was, in retrospect, evidentially weak.

Type
SYMPOSIUM: THE TEMPLE OF PREAH VIHEAR
Information
Asian Journal of International Law , Volume 5 , Issue 1 , January 2015 , pp. 16 - 25
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

Postdoctoral Fellow, National University of Singapore. I would like to thank Simon Chesterman for his comments on an early draft of this paper.

References

1. See CUASAY, Peter, “Borders on the Fantastic: Mimesis, Violence, and Landscape at the Temple of Preah Vihear” (1998) 32 Modern Asian Studies 849CrossRefGoogle Scholar. In order to maintain consistency with the language used by the ICJ, this paper uses the name “Preah Vihear” for the Temple hereafter.

2. See Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, [1962] I.C.J. Rep. 6. [Preah Vihear (Merits)].

3. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org〉 [Request for Interpretation (Temple of Preah Vihear)].

4. Ibid., at 36.

5. See CHAN, Phil C.W., “Acquiescence/Estoppel in International Boundaries: Temple of Preah Vihear Revisited” (2004) 3 Chinese Journal of International Law 421 at 434Google Scholar.

6. Supra note 3 at 25, para. 66.

7. South West Africa Cases, Second Phase, Judgment of 18 July 1966, [1966] I.C.J. Rep. 6 [South West Africa cases]. On the controversy of the South West Africa cases, see Victor KATTAN, “Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South West Africa Cases”, this volume.

8. Supra note 3.

9. See see Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Separate Opinion of Judge Cançado Trindade, Judgment of 11 November 2013, paras. 62−3, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17708.pdf〉.

10. See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Declaration of Judge ad hoc Guillaume, 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17711.pdf〉; Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Declaration of Judge ad hoc Cot, 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/ files /151/17713.pdf〉; and Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Joint Declaration of Judges Owada, Bennouna, and Gaja, 11 November 2013, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17706.pdf〉.

11. See Opinion Dissidente de M. Moreno Quintana, supra note 2 at 67; Dissenting Opinion of Judge Wellington Koo, supra note 2 at 75; Dissenting Opinion of Sir Percy Spender, supra note 2 at 101.

12. Cuasay, , supra note 1 at 850Google Scholar.

13. Supra note 3 at 14, para. 25.

14. Ibid., at 14, para. 26.

15. See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Written observations of the Kingdom of Thailand, 21 November 2011, International Court of Justice, online: ICJ 〈http://www.icj-cij.org/docket/files/151/17284.pdf〉 at 193−256. For Cambodia's arguments, see Request for Interpretation (Temple of Preah Vihear), supra note 3 at 8, para. 12(vii).

16. Supra note 3 at 29, para. 78, quoting Cambodia's counsel.

17. Ibid., at 29.

18. Ibid., at 32, para. 88.

19. Ibid., at 33, para. 97.

20. Ibid., at 34, para. 98.

21. See Preah Vihear (Merits), supra note 2 at 22−33.

22. See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Application Instituting Proceedings, 28 April 2011, online: ICJ 〈http://ww w.icj-cij.org/docket/files/151/16470.pdf〉, paras. 24, 42, 44, 45.

23. Supra note 15 at 260, para. 6.6. As Sir Percy observed: “The frontier line delineated in Annex 1 deviates considerably from the watershed.” This was due to “a mistake caused by an incorrect location of a river known as the O'Tasem. This mistake resulted in throwing the frontier line shown on Annex I completely out of alignment with the line of the watershed in the region of the Temple.” “The result”, Sir Percy continued, “was to leave the Temple wholly within the territory of Cambodia.” See the Dissenting Opinion of Sir Percy Spender, supra note 2 at 122.

24. Supra note 15 at 279, 6.31, citing the Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), [1963] I.C.J. Rep. 15.

25. See Dissenting Opinion of Judge Moreno Quintana, supra note 2 at 67, who reached this conclusion on the basis of such reasoning.

26. Although the accuracy of the Annex 1 map also became an issue in the 2013 Judgment—and was perhaps another reason for the Court to ignore it. As Thailand observed, the Annex 1 map that Cambodia was basing its case on was not the map that had been placed before the Court in 1962, but a revised version. See supra note 15 at 272, ftn 597.

27. See Dissenting Opinion of Judge Wellington Koo, supra note 2 at 84, para. 19.

28. Ibid., at 84, para. 19.

29. See Dissenting Opinion of Sir Percy Spender, supra note 2 at 126.

30. Whilst in the Preah Vihear (Merits) case, only Judges Wellington Koo and Sir Percy Spender thought that detrimental reliance was required for estoppels to operate, in the North Sea Continental Shelf cases, [1969] I.C.J. Rep. 3, the majority (including Judge Gerald Fitzmaurice) indicated that estoppel required detrimental reliance. Clearly, Fitzmaurice had changed his mind, since in Preah Vihear (Merits), he did not think that detrimental reliance was necessary for estoppels to operate. See HIGGINS, Rosalyn, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1995)Google Scholar at 36.

31. See Chan, , supra note 5 at 426Google Scholar.

32. Supra note 2 at 30−1.

33. See Dissenting Opinion of Judge Wellington Koo, supra note 2 at 90−1, para. 34.

34. See Dissenting Opinion of Sir Percy Spender, supra note 2 at 128.

35. Ibid., at 129.

36. As John Tully writes, between 1953, the year of Cambodia's independence, and 1963, “the United States had contributed almost US$404 million to the Cambodian state, more than double the quantity given by all other donors combined and amounting to a 15 per cent annual subsidy of the Cambodian treasury”. See TULLY, John, A Short History of Cambodia: From Empire to Survival (Crows Nest, NSW: Allen & Unwin, 2006)Google Scholar at 143.

37. In the late 1950s, Prince Sihanouk “claimed that 35 per cent of returning graduates from French universities were ‘infected’ with communist beliefs”; ibid., at 141.

38. Ibid., at 118−19.

39. See Cuasay, , supra note 1 at 878−879Google Scholar.

40. Ibid., at 864−5, quoting the 18 and 19 June 1962 editions of The Bangkok Post.

41. Sir Frank Soskice, the United Kingdom's former Attorney-General, became Thailand's leading counsel in Jessup's place, although it seems that in this particular case he was no match for the formidable Acheson.

42. See Cuasay, , supra note. 1 at 855−876Google Scholar.

43. See Preah Vihear (Merits), supra note 2 at 15.

44. The Court, in dismissing Ethiopia's and Liberia's claims that South Africa was breaching human rights in South West Africa through its apartheid policy, explained that humanitarian considerations were insufficient in themselves to generate legal rights and obligations. The 1966 Court explained that it could take account of moral principles “only in so far as these are given a sufficient expression in legal form”. See South West Africa cases, supra note 7 at 34, para. 49.

45. The 1966 Court had used the phrase “clothed in legal form” to dismiss the Applicant's arguments that the “sacred trust of civilization” in Article 22 of the League of Nations Covenant was devoid of legal content and merely expressed a moral or humanitarian ideal. See ibid., at 34, para. 51.

46. Burgis-Kasthala makes the argument that the ICJ favours colonial documents over other sources which may indicate governmental authority over territory, such as Islamic sources, in her analysis of ICJ Judgments on territorial disputes in the Arab world. See BURGIS, Michelle, Boundaries of Discourse in the International Court of Justice: Mapping Arguments in Arab Territorial Disputes (Leiden: Brill, 2009)CrossRefGoogle Scholar.

47. See Separate Opinion of Sir Gerald Fitzmaurice, supra note 2 at 52 and 58. Sir Gerald (at 60−1) seems to have been persuaded by the evidence of one of Thailand's witnesses that he saw no evidence of inhabitants, rice cultivations, or forestry during a visit he made to the Temple in 1961.

48. Ibid., at 58.

49. See Dissenting Opinion of Moreno Quintana, supra note 2 at 68.

50. See Separate Opinion of Sir Gerald Fitzmaurice, supra note 2 at 52.