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The International Court of Justice in Asia: Interpreting the Temple of Preah Vihear Case

Published online by Cambridge University Press:  07 April 2014

Simon CHESTERMANOpen the ORCID record for Simon CHESTERMAN[Opens in a new window]
Simon CHESTERMAN*
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National University of Singapore, Singaporechesterman@nus.edu.sg
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Abstract

This essay examines the 2013 Decision by the International Court of Justice interpreting its 1962 Judgment in the Temple of Preah Vihear case between Cambodia and Thailand, situating the more recent decision in the context of the Court's evolving role in Asia. Only eight Asian states have accepted the compulsory jurisdiction of the Court; only nine have ever appeared before it. The narrowness of the recent decision is of interest in part because of the modest role it ascribes to judicial institutions, but also for what this modesty heralds for the Court's status in Asia. A key conclusion is that Asian states are likely to retain a general preference for bilateral resolution of disputes. For smaller disputes, however, especially those concerning subjects that cannot be divided or traded—such as a temple (and, as we shall see, an island)—the ICJ may play an important role.

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Type
SYMPOSIUM: THE TEMPLE OF PREAH VIHEAR
Information
Asian Journal of International Law , Volume 5 , Issue 1 , January 2015, pp. 1 - 6
Copyright
Copyright © Asian Journal of International Law 2014 

The International Court of Justice (ICJ) is an atypical judicial body at the best of times. Few courts have jurisdiction only over parties willing to submit disputes to them voluntarily; few so blatantly acknowledge the politicized nature of their work as to allow each party to appoint “their” judge as an ad hoc member of the bench.Footnote 1 Such aspects more closely resemble an arbitral tribunal than they do the domestic courts of most states, but they also acknowledge the fragile legitimacy exercised by the Court in a legal regime that remains premised, essentially, on the consent of its subjects.

As a region, Asia has by far the lowest proportion of states that have given that consent. By the end of 2013, only eight states had accepted the compulsory jurisdiction of the Court: Cambodia, Cyprus,Footnote 2 India, Japan, the Marshall Islands, Pakistan, the Philippines, and Timor-Leste. This makes up around fifteen percent of the fifty-three-member Asia Pacific Group at the United Nations. The comparable rates for other regions are far higher: thirty percent of Eastern Europe; thirty-nine percent of the Latin American and Caribbean Group; forty-one percent of Africa; and sixty-nine percent of the Western Europe and Others Group (WEOG).Footnote 3

Unsurprisingly, this correlates with low usage of the Court by Asian states. By the end of 2013, less than a quarter (twenty-four percent) had ever appeared before the ICJ in a contentious case. This compares with forty-six percent of African states, forty-eight percent of Latin American and Caribbean states, fifty-seven percent of Eastern European states, and seventy-nine percent of WEOG. If one excludes the Middle East, the number of “Asian” states drops still further to twenty-one percent, or nine countries—Cambodia, India, Indonesia, Japan, Malaysia, Nauru, Pakistan, Singapore, and Thailand—that have ever appeared before the Court.Footnote 4 Four of those appeared for the first time in 2001 or later.Footnote 5

Any ICJ case involving Asian parties is therefore worthy of close examination, both in terms of its inherent interest but also with reference to the impact, if any, it will have on the Court's reception in Asia. Through this lens, the ICJ's minimalist approach to its role in the Temple of Preah Vihear case may be seen both as a modest view of the judicial function in general, but also as a realist approach to the Court's status in Asia in particular. A key conclusion is that Asian states are likely to retain a general preference for the bilateral resolution of disputes. For smaller disputes, however, especially those concerning subjects that cannot be divided or traded—such as a temple (and, as we shall see, an island)—the ICJ may play an important role.

I. Judicial Modesty

In the Temple of Preah Vihear case, the Court's reluctance to take an expansive view of its role can be seen in its resistance to being drawn on questions beyond the narrow confines of what it determined to be the subject matter of its 1962 Decision and the 2013 “interpretation”. Thus it cited previous authorities on the Court's power to interpret its decisions, where it had stated that:

[t]he 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 would nullify the provision of the article that the judgment is final and without appeal.Footnote 6

On this basis, the Court held that its role under Article 60 of the Statute of the ICJ required it to keep strictly within the limits of the original Judgment. It was therefore prevented from questioning matters settled in that Judgment with binding force or providing answers to questions not decided in that original Judgment.Footnote 7

In addition to these general constraints as to its role, the Court also noted two restrictions on what it could consider in carrying out that function. First, the Court offered a useful reminder to students of international law that only the text of a judgment reflects its decision: headnotes and other editorial trimmings do not constitute “an authoritative summary of what the Court has actually decided”.Footnote 8 Secondly, it determined that subsequent state practice was also unhelpful when interpreting a past judgment. On this basis it disregarded the extensive submissions by Thailand on the subsequent conduct of the two parties. The Court emphasized that its judgments should not be compared to treaties, the interpretation of which may be affected by the later conduct of States Parties.Footnote 9 Put bluntly, interpreting a judgment of the Court is a matter of ascertaining “what the Court decided, not what the parties subsequently believed it had decided”.Footnote 10

In the context of the Temple of Preah Vihear case, this enabled a relatively clear resolution of the instant subject matter:Footnote 11 that by using the term “vicinity” in its 1962 Judgment, the Court meant that Cambodian sovereignty extended to the entire Preah Vihear promontory.Footnote 12 This was more than Thailand had allowed when it erected a barbed-wire fence around the Temple itself and posted signs stating that “the vicinity of the Temple … does not extend beyond this limit”.Footnote 13 But it was also far less than Cambodia claimed in the proceedings and only a fraction of the land that forms the disputed frontier between Cambodia and Thailand. At the same time, the Court was at pains to emphasize that such a conclusion did not mean that land excluded from this interpretation, in particular the hill of Phnom Trap, was considered by the Court to be part of Thailand. All such other areas beyond the promontory were also beyond the scope of the 1962 Decision and its 2013 interpretation.Footnote 14 On these outstanding matters the Court expressed no view.

II. The Court In Asia

The original Temple of Preah Vihear case, decided in 1962, was the first of three territorial delimitation cases involving Asian states that have come before the ICJ. The second was when Indonesia and Malaysia agreed in 1998 to bring a dispute over the islands of Ligitan and Sipadan to the Court; the third concerned Malaysia's and Singapore's competing claims to Pedra Branca, added to the Court's docket in 2003. In all three, it is striking that the States Parties submitted only one relatively small part of a larger dispute to international adjudication. In the Temple of Preah Vihear case, it was the temple itself and its “vicinity”—approximately one square kilometre out of a total contested area that is in the order of 4.6 square kilometres, including a frontier that is more than 100 kilometres in extent.Footnote 15 In the Pulau Ligitan and Pulau Sipadan and the Pedra Branca cases, the Court's role was limited to determining sovereignty of the islands themselves and not the maritime boundaries.Footnote 16 (In the case of Pedra Branca, the issue of whether to include Middle Rocks and South Ledge as well as Pedra Branca itself delayed agreement on going to the ICJ at all for more than four years.Footnote 17)

Outstanding issues therefore remain in all three cases.

Half a century after the Temple of Preah Vihear case, the majority of the disputed territory is the subject of ongoing negotiations. In this context, it is worth noting that at the final stages leading to the 1962 Decision, Cambodia did in fact ask the Court to determine the contours of its border with Thailand. These submissions were rejected by the ICJ as going beyond the subject matter of the dispute as submitted, which was “confined to a difference of view about sovereignty over the region of the Temple of Preah Vihear”.Footnote 18 Given the domestic reaction to the recent ICJ decision in Thailand, there appears to be little prospect of these larger issues being submitted to third-party adjudication in the near future.

The maritime borders between Indonesia and Malaysia are also unresolved. Interestingly, in that case Judge ad hoc Thomas M. Franck dissented on the basis that instead of focusing on effectivités (acts of state authority) that supported Malaysia's claim to sovereignty over the islands, the Court should have interpreted an 1891 treaty broadly so as to resolve the entire frontier dispute (this would have seen the islands fall to Indonesia).Footnote 19 That path was not taken and negotiations between Indonesia and Malaysia on their maritime boundaries are ongoing.

Perhaps more explicitly than any recent case before the ICJ, the Pedra Branca Decision attempted to divide the subject matter of the dispute between the parties. Having held that Pedra Branca itself fell to Singapore, the Court found that Malaysia had sovereignty over Middle Rocks. The third feature being considered—the low-tide elevation of South Ledge—belonged to the state “in the territorial waters of which it is located”.Footnote 20 The matter was further complicated by the fact that Indonesia, which was not a party to the dispute, also has maritime claims in the area, including its territorial sea, exclusive economic zone, and continental shelf interests.Footnote 21 In February 2013, the Prime Ministers of Malaysia and Singapore noted that a Joint Technical Committee established soon after the ICJ case had met six times and completed its survey works.Footnote 22 In November 2013, a brief statement announced the creation of a subcommittee that was to commence delimitation negotiations.Footnote 23 No timeframe was given, nor was there an indication of any involvement on the part of Indonesia.

A common theme in each of the three Asian delimitation cases appears to be that third-party adjudication was limited to items that were indivisible and therefore could not realistically be negotiated. The Temple of Preah Vihear itself and the islands were, presumably, always going to fall to one country or the other. Limiting adjudication to such items enabled the various states to reconcile themselves to that reality, while preserving the ability to haggle over more fungible items: the scrubland frontier in the case of Cambodia and Thailand, and the maritime boundaries between Indonesia and Malaysia, and Malaysia and Singapore, respectively. It remains to be seen whether Asian states will be willing in future to submit these larger disputes to third-party adjudication.

III. Conclusion

Winston Churchill is famously said to have described Clement Attlee as “a very modest man”, before adding “but then he has much to be modest about”.Footnote 24 The International Court of Justice's modesty in its consideration of the Asian disputes discussed here is broadly consistent with its approach more generally.Footnote 25 Indeed, in politically fraught cases, it has regularly read down the potential reach of its judicial authority. In the 2010 Kosovo Advisory Opinion, for example, it neatly reframed the question of Kosovo's unilateral declaration of independence to focus on the legal significance of the “declaration” (minimal) as opposed to Kosovo's “independence” (controversial).Footnote 26 In the 1974 Nuclear Tests case, the Court seized upon statements by the French government that it would discontinue testing to conclude that the question of whether such tests violated international law was now moot.Footnote 27 In the Legality of Use of Force case concerning NATO's 1999 intervention in Kosovo, it dismissed the case on the technical ground that Serbia could not claim to have succeeded the Socialist Federal Republic of Yugoslavia as a party to the ICJ Statute—even though the Genocide case brought by Bosnia against Serbia had been continuing on that basis for a decade.Footnote 28 And, most notoriously, in the South-West Africa cases of 1966, it appeared to re-open a previously decided procedural question (whether Ethiopia and Liberia had standing to bring the case) in order to avoid having to pronounce on the legality of apartheid South Africa's ongoing administration of what is now Namibia.Footnote 29

The Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) is clearly not in that league of controversial decisions. On the contrary, the modest role asserted by the Court may raise the comfort level of Asian and other states concerning the submission of discrete territorial questions to the ICJ if they are not likely to be resolved through political means.Footnote 30 It is unlikely that this will extend to matters such as the South China Sea, where China has resisted any attempt at “internationalization” and rejected both the Philippines’ efforts to bring the matter before the International Tribunal on the Law of the Sea and the Tribunal's own competence to determine whether it has jurisdiction.Footnote 31 But for less sensitive disputes, where indivisible territory is at stake and posing a barrier to resolution, the ICJ may offer a viable option.

Footnotes

*

Dean and Professor, National University of Singapore Faculty of Law. Many thanks to Diego Germán Mejía-Lemos, Tan Hsien-Li, Simon S.C. Tay, and Thio Li-ann for their thoughtful comments on an earlier draft of this paper.

1. See e.g. SCHWEBEL, Stephen M., “National Judges and Judges Ad Hoc of the International Court of Justice” (1999) 48 International and Comparative Law Quarterly 889; Miguel F.P. DE FIGUEIREDO, and Eric A. POSNER, , “Is the International Court of Justice Biased?” (2005) 34 Journal of Legal Studies 599.

2. Cyprus is a member of the Asia Pacific Group at the United Nations despite also being a member of the European Union.

3. Data compiled from the International Court of Justice, Declarations Recognizing the Jurisdiction of the Court as Compulsory, online: ICJ <http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3>.

4. Data compiled from the International Court of Justice, List of Contentious Cases, online: ICJ <http://www.icj-cij.org/docket/index.php?p1=3&p2=3>.

5. See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, [2002] I.C.J. Rep. 625; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, [2008] I.C.J. Rep. 625. In 2010, Australia instituted proceedings against Japan for alleged breach of international obligations concerning whaling; New Zealand successfully petitioned to intervene in the case, which is ongoing before the ICJ.

6. 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, 11 November 2013), online: ICJ <http://www.icj-cij.org/docket/index.php?sum=284&p1=3&p2=3&k=46&case=151&p3=0>, para. 55, quoting Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, Judgment, [1950] I.C.J. Rep. 395 at 402; also quoted in 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, [1999] I.C.J. Rep. 31 at 36−7, para. 12.

7. Request for Interpretation (Temple of Preah Vihear), ibid., para. 66. What falls within the “limits” of the original Judgment was the subject of some division within the Court, with Judges Owada, Bennouna, and Gaja expressing concern in a joint declaration that their colleagues had conflated “inseparable” and “essential” reasons for the original decision. Only the former, they argued, could properly be the basis for interpretation under an art. 60 proceeding; see Request for Interpretation (Temple of Preah Vihear), Joint Declaration of Judges Owada, Bennouna, and Gaja, Judgment of 11 November 2013, online: ICJ <http://www.icj-cij.org>.

8. Ibid., para. 73.

9. See art. 31(3)(b) of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [VCLT].

10. Request for Interpretation (Temple of Preah Vihear), supra note 6, para. 75. This statement was criticized by Judge Cançado Trindade as demonstrating “timidity” and being at odds with the actual reasoning of the Court; see Request for Interpretation (Temple of Preah Vihear), Separate Opinion of Judge Cançado Trindade, Judgment of 11 November 2013, at paras. 62−3, online: ICJ <http://www.icj-cij.org/docket/files/151/17708.pdf>.

11. It was noteworthy that both judges ad hoc supported the dispositif. Indeed, Judge ad hoc Cot, who was appointed by Thailand, observed that the outcome corresponded closely with an interpretation considered by Thailand itself in 1962; see Request for Interpretation (Temple of Preah Vihear), Judgment of 11 November 2013, Declaration of Judge ad hoc Cot, online: ICJ <http://www.icj-cij.org/docket/files/151/17713.pdf>.

12. Ibid., paras. 81−97.

13. Ibid., para. 41.

14. Ibid., para. 97.

15. Ibid., paras. 78, 83.

16. Pedra Branca, supra note 5, para. 298.

17. JAYAKUMAR, S. and KOH, Tommy, Pedra Branca: The Road to the World Court (Singapore: NUS Press, 2009) at 35−40.

18. Case Concerning the Temple of Preah Vihear (Merits) (Cambodia v. Thailand), [1962] I.C.J. Rep. 6 at 14.

19. Judge ad hoc Franck, dissenting, held that this would have led to a finding that the two islands of Ligitan and Sipadan were in Indonesian waters and therefore subject to Indonesian sovereignty; see Pulau Ligitan and Pulau Sipadan, Dissenting Opinion of Judge ad hoc Franck, supra note 5 at 703−5, paras. 38−43. Cf. O'KEEFE, Roger, “Legal Title versus Effectivités: Prescription and the Promise and Problems of Private Law Analogies” (2011) 13 International Community Law Review 147.

20. Pedra Branca, supra note 5, para. 299.

21. See BECKMAN, Robert and SCHOFIELD, Clive, “Moving Beyond Disputes over Island Sovereignty: ICJ Decision Sets Stage for Maritime Boundary Delimitation in the Singapore Strait” (2009) 40 Ocean Development & International Law 1; I. Made Andi ARSANA, , “Maritime Delimitation in the Singapore Strait: The Next Step for Indonesia, Malaysia and Singapore” (2010) 14 Hydro International 23.

22. Ministry of Foreign Affairs, Singapore, “Joint Statement By Prime Minister Lee Hsien Loong and Prime Minister Dato'Sri Mohd Najib Tun Abdul Razak at the Singapore-Malaysia Leaders’ Retreat” (19 February 2013), online: MFA <http://www.mfa.gov.sg/content/mfa/media_centre/press_room/pr/2013/201302/press_20 130219_01.html>, para. 7.

23. Hui, POON Chian, “Panel to Draw Up Maritime Boundaries” Straits Times (1 December 2013) (quoting a joint statement by Singapore and Malaysia's foreign ministers), online: AsiaOne <http://news.asiaone.com/news/singapore/panel-draw-maritime-boundaries>.

24. SEVERANCE, John B., Winston Churchill: Soldier, Statesman, Artist (New York: Houghton Mifflin Harcourt, 1996) at 129.

25. Note, however, the implicit criticism by Judges Owada, Bennouna, and Gaja that the majority in the Temple of Preah Vihear interpretation did not take an even narrower approach; see supra note 7.

26. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] I.C.J. Rep. 403.

27. Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253.

28. Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Judgment, [2004] I.C.J. Rep. 1307. The inconsistency with the Genocide case was later resolved through the artifice of res judicata; see Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] I.C.J. Rep. 43.

29. South West Africa (Ethiopia & Liberia v. South Africa), Judgment, Second Phase, [1966] I.C.J. Rep. 6.

30. Cf. TAY, Simon S.C., Asia Alone: The Dangerous Post-Crisis Divide from America (Singapore: John Wiley & Sons) at 51−52 (discussing the increasing acceptance of dispute resolution within the Association of Southeast Asian Nations).

31. ORENDAIN, Simone, “Philippines Eyes Swift Conclusion of S. China Sea Arbitration” Voice of America (25 October 2013), online: VOA <http://www.voanews.com/content/philippine-eyes-swift-conclusion-by-un-arbitration-body-on-south-china-sea/1776708.html>. See also BECKMAN, Robert, “The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea” (2013) 107 American Journal of International Law 142 at 161−163.

* Dean and Professor, National University of Singapore Faculty of Law. Many thanks to Diego Germán Mejía-Lemos, Tan Hsien-Li, Simon S.C. Tay, and Thio Li-ann for their thoughtful comments on an earlier draft of this paper.