REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 15 JUNE 1962 IN THE CASE CONCERNING THE TEMPLE OF PREAH VIHEAR (CAMBODIA v. THAILAND) 11/11/2013

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Historical background

1. The Temple of Preah Vihear is situated on a promontory of the same name in the eastern part of the Dangrek range of mountains, “which, in a general way, constitutes the boundary between the two countries in this region — Cambodia to the south and Thailand to the north” (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 15).
2. On 13 February 1904, France (of which Cambodia was then a protectorate) and Siam (as Thailand was then called) concluded a treaty (hereinafter the “1904 Treaty”) which specified that the frontier in the Dangrek sector was to follow the watershed line “between the basins of the Nam Sen and the Mekong, on the one hand, and the Nam Moun, on the other hand”. The 1904 Treaty provided for the establishment of Mixed Commissions composed of officers appointed by the two Parties and responsible for delimiting the frontier between the two territories. The first Mixed Commission was thus established in 1904. The final stage of the operation of delimitation was to be the preparation and publication of maps, a task assigned to a team of four French officers, three of whom had been members of the Mixed Commission. In 1907, that team prepared a series of 11 maps covering a large part of the frontiers between Siam and French Indo-China (of which Cambodia formed part). In particular, it drew up a map entitled “Dangrek — Commission of Delimitation between Indo-China and Siam”, on which the frontier passed to the north of Preah Vihear, thus leaving the Temple in Cambodia. That map was duly communicated to the Siamese Government in 1908, but was never approved by the Mixed Commission which had ceased to function some months before the production of the map (see Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 21).
3. Following Cambodia’s independence on 9 November 1953, Thailand occupied the Temple of Preah Vihear in 1954. Negotiations between the parties regarding the Temple were unsuccessful and, on 6 October 1959, Cambodia seised the Court by unilateral application. Thailand filed preliminary objections to the jurisdiction of the Court.
4. In its Judgment of 26 May 1961 on Thailand’s preliminary objections, the Court found that it had jurisdiction to entertain the dispute concerning the Temple of Preah Vihear (Cambodia v. Thailand) and set out the subject-matter of that dispute in the following terms: “In the present case, Cambodia alleges a violation on the part of Thailand of Cambodia’s territorial sovereignty over the region of the Temple of Preah Vihear and its precincts. Thailand replies by affirming that the area in question lies on the Thai side of the common frontier between the two countries, and is under the sovereignty of Thailand. This is a dispute about territorial sovereignty.” (I.C.J. Reports 1961, p. 22.)
5. During the merits phase, Cambodia relied upon the map referred to in paragraph 15 above, which was annexed to its pleadings and was referred to as the “Annex I map”. Cambodia argued that this map had been accepted by Thailand and had entered into the treaty settlement, thereby becoming binding on the two States. According to Cambodia, the line shown on the map (hereinafter “the Annex I map line”) had thus become the frontier between the two States. Thailand denied that it had accepted the Annex I map, or that the map had otherwise become binding upon it, and maintained that the boundary between the two States followed the watershed line, as provided in the text of the 1904 Treaty, with the result, according to Thailand, that the Temple lay in Thai territory (cf. Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 21).
6. In the 1959 Application and its Memorial, Cambodia asked the Court to rule: (1) that Thailand was under an obligation to withdraw the detachments of its armed forces stationed in the ruins of the Temple of Preah Vihear and (2) that the territorial sovereignty over the Temple of Preah Vihear belonged to Cambodia (ibid., p. 9). In its final submissions presented at the conclusion of the oral proceedings in 1962, however, Cambodia went further, asking the Court to rule: (1) that the Annex I map had been drawn up and published in the name and on behalf of the Mixed Commission set up by the 1904 Treaty, that it set 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 presented a treaty character; (2) that the frontier line between Cambodia and Thailand, in the disputed region in the neighbourhood of the Temple, was the Annex I map line; (3) that the Temple of Preah Vihear was situated in territory under Cambodian sovereignty; (4) that Thailand was under an obligation to withdraw the detachments of armed forces it had stationed since 1954 in Cambodian territory in the ruins of the Temple; and (5) that Thailand must return property removed from the Temple since 1954 (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 11).
7. In its Judgment on the merits, delivered on 15 June 1962, the Court stated that “the subject of the dispute submitted to the Court [was] confined to a difference of view about sovereignty over the region of the Temple of Preah Vihear” (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 14). For that reason, the Court concluded that Cambodia’s first and second final submissions could be entertained “only to the extent that they give expression to grounds, and not as claims to be dealt with in the operative provisions of the Judgment” (ibid., p. 36). In its reasoning, the Court stated that, in 1908-1909, Thailand had accepted the Annex I map “as representing the outcome of the work of delimitation, and hence recognized the line on that map as being the frontier line, the effect of which is to situate Preah Vihear in Cambodian territory” (ibid., p. 32).
8. The operative part of the Judgment reads as follows: “The Court, [1] by nine votes to three, finds that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia; finds in consequence[2] by nine votes to three, that Thailand is 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;[3] by seven votes to five, 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.” (Ibid., pp. 36-37.)
9. Following the delivery of the 1962 Judgment, Thailand withdrew from the Temple buildings. It erected a barbed wire fence which divided the Temple ruins from the rest of the promontory of Preah Vihear. This fence followed the course of a line (hereinafter sometimes referred to as the “Thai Council of Ministers’ line”) depicted on the map attached to a resolution, adopted by the Council of Ministers of Thailand on 10 July 1962 but not made public until the present proceedings. By that resolution, the Thai Council of Ministers fixed what it considered to be the limits of the area from which Thailand was required to withdraw.
10. On 5 January 1963, the Head of State of Cambodia, Prince Sihanouk, and a large party of Cambodian officials and monks, as well as diplomatic representatives of other States, visited the Temple. During the course of this visit, they remained within the area enclosed by the barbed wire fence. The events of this period are considered in paragraphs 38 to 42 below.
11. On 21 June 1997, the Parties established the “Thai-Cambodian Joint Commission on Demarcation for Land Boundary”, entrusting it with the task “of placing markers in order to indicate the land boundary between the two countries”. On 14 June 2000, they concluded a “Memorandum of Understanding on the Survey and Demarcation of the Land Boundary” (hereinafter the “Memorandum of Understanding”), which provided for the demarcation of the frontier line between the two States and included, in particular, the terms of reference for the work of the Thai-Cambodian Joint Commission on Demarcation for Land Boundary.
12. In 2007, Cambodia requested that the UNESCO World Heritage Committee inscribe the site of the Temple of Preah Vihear on the World Heritage List established under the provisions of the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage (hereinafter the “World Heritage Convention”). To that end, it communicated to the Committee, in accordance with the Guidelines for the Implementation of the World Heritage Convention adopted by the Committee, a map depicting the site of the property. Cambodia included on the map what it considered to be the course of the frontier separating it from Thailand, the actual site of the monument and a buffer zone (described in the Committee’s Guidelines as “an area surrounding the nominated property which has complementary legal and/or customary restrictions placed on its use and development to give an added layer of protection to the property”). According to that map, the entire promontory of Preah Vihear, as well as the hill of Phnom Trap¹ immediately to the west of the promontory, were within Cambodian territory.
13. On 17 May 2007, Thailand contested that map by means of an aide-memoire, which it sent to Cambodia and to the World Heritage Committee, to which it attached its own map showing the international boundary between the two States as following the line drawn on the map attached to the 1962 Resolution of the Thai Council of Ministers (see paragraph 22 above).
14. On 7 July 2008, the World Heritage Committee decided to inscribe the site of the Temple of Preah Vihear on the World Heritage List, albeit with what the Committee described as “a revised graphic plan of the property”, which excluded the area disputed between Cambodia and Thailand.
15. Following the Temple’s inscription on that List, a number of armed incidents took place in the border area close to the Temple. On 14 February 2011, the United Nations Security Council called for a permanent ceasefire to be established and expressed its support for the efforts of the Association of South-East Asian Nations (“ASEAN”) to find a solution to the conflict. The Chair of ASEAN, Indonesia, was subsequently invited by Cambodia and by Thailand to send observers to the affected border areas so as to avoid further armed clashes. This invitation was welcomed by the Foreign Ministers of ASEAN and their representatives but was not acted upon.
16. It is recalled that, on 28 April 2011, Cambodia filed a Request for interpretation of the 1962 Judgment, together with a request for the indication of provisional measures (see paragraph 1 above). In its Order of 18 July 2011 on provisional measures, the Court found that there existed, prima facie, a dispute within the meaning of Article 60 of the Statute and indicated provisional measures which, in particular, required both Parties to withdraw their military personnel from a “provisional demilitarized zone” around the Temple, as defined by the Court (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, I. C.J. Reports 2011 (II), p. 537) (see paragraph 4 above).

Jurisdiction and admissibility

1. The Court will first determine whether it has jurisdiction over the Request for interpretation submitted by Cambodia and, if so, whether this Request is admissible.

Jurisdiction of the Court under Article 60 of the Statute

1. Cambodia submitted its Request for interpretation pursuant to Article 60 of the Statute of the Court (see paragraph 29 above). That Article provides that “The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” This provision is supplemented by Article 98, paragraph 1, of the Rules of Court, which stipulates that “[i]n the event of dispute as to the meaning or scope of a judgment any party may make a request for its interpretation . . .”. Further, Article 98, paragraph 2, of the Rules of Court, requires a party to indicate in its request for interpretation “the precise point or points in dispute as to the meaning or scope of the judgment”.
2. The Court begins by recalling that “[its] jurisdiction on the basis of Article 60 of the Statute is not preconditioned by the existence of any other basis of jurisdiction as between the parties to the original case” and that “by virtue of Article 60 of the Statute, [the Court] may entertain a request for interpretation provided that there is a ‘dispute as to the meaning or scope’ of any judgment rendered by it” (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, I.C.J. Reports 2011 (II), p. 542, para. 21; 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, paras. 44 and 46; Judgment, I.C.J. Reports 2009, p. 9, paras. 15-16).
3. The Court also recalls that, while the English text of Article 60 uses the term “dispute”, which also appears in the English text of Article 36, paragraph 2, of the Statute, the French text of Article 60 uses the term “contestation”, which has a broader meaning than “differend”, the term used in the French text of Article 36, paragraph 2. The Court further recalls that “a dispute within the meaning of Article 60 of the Statute must be understood as a difference of opinion or views between the parties as to the meaning or scope of a judgment rendered by the Court” (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,  I. C.J. Reports 2011 (II), p. 542, para. 22). As the Court has previously confirmed, the existence of a dispute under Article 60 of the Statute “does not require the same criteria to be fulfilled as those determining the existence of a dispute under Article 36, paragraph 2, of the Statute” (ibid.; see also Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), 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). Furthermore, it is not required that a dispute as to the meaning and scope of a judgment “should have manifested itself in a formal way; . . . it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 11; see also Application for Revision and Interpretation of the Judgment of 24 February 1982 in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 217-218, para. 46; 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, pp. 325-326, para. 54).
4. In accordance with the jurisprudence of the Court, “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” (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, I.C.J. Reports 2011 (II), p. 542, para. 23; see also 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) or, in the words of the Permanent Court, constitute “a condition essential to the Court’s decision” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 20). That said, “a difference of opinion as to whether a particular point has or has not been decided with binding force also constitutes a case which comes within the terms of Article 60 of the Statute” (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, I.C.J. Reports 2011 (II), p. 544, para. 31; see also Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, pp. 11-12).
5. In its Order on provisional measures in the present case, the Court observed that “a difference of opinion or views appears to exist between [the Parties] as to the meaning or scope of the 1962 Judgment” and that “this difference appears to relate” to three specific aspects of that Judgment: “in the first place, to the meaning and scope of the phrase ‘vicinity on Cambodian territory’ used in the second paragraph of the operative clause of the Judgment . . . next, to the nature of the obligation imposed on Thailand, in the second paragraph of the operative clause of the Judgment, to ‘withdraw any military or police forces, or other guards or keepers’, and, in particular, to the question of whether this obligation is of a continuing or an instantaneous character; and . . . finally, to the question of whether the Judgment did or did not recognize with binding force the line shown on the Annex I map as representing the frontier between the two Parties . . .” (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, I.C.J. Reports 2011 (II), p. 544, para. 31).
6. The Court stated, however, that the decision rendered on the request for the indication of provisional measures “in no way prejudge [d] any question that the Court may have to deal with relating to the Request for interpretation” (ibid., p. 554, para. 68). Accordingly, the Court must at this stage determine whether a dispute indeed exists between the Parties as to the meaning or scope of the operative clause of the 1962 Judgment, and, if so, identify the precise point or points that require interpretation. The Court will address these two questions in turn.

The existence of a dispute

1. Cambodia maintains that the Parties are in dispute as to the meaning and scope of the 1962 Judgment, specifically in the following respects: (a) whether the Court in the 1962 Judgment did or did not recognize with binding force the Annex I map line as constituting the frontier between the two Parties in the area of the Temple; (b) whether or not the meaning and scope of the phrase “situated in territory under the sovereignty of Cambodia” and the phrase “its vicinity on Cambodian territory” included, respectively, in the first and second paragraphs of the operative clause of the 1962 Judgment, must be understood by reference to the line depicted on the Annex I map which the Court “recognized” as constituting the frontier between the Parties in the area of the Temple; and (c) whether or not Thailand’s obligation to withdraw from the area of “the Temple [and] its vicinity on Cambodian territory”, deriving from the second paragraph of the operative clause, is of a continuing character.
2. Cambodia asserts that this dispute emerged immediately after the 1962 Judgment. In particular, Cambodia maintains that, immediately after the 1962 Judgment and throughout the 1960s, it continually protested against Thailand’s unilateral determination, in July 1962, of the “vicinity of the Temple” (as manifested by the barbed wire fence and notices erected by Thailand), and against Thailand’s view that the geographical scope of its obligation to withdraw under the 1962 Judgment was limited to the ruins of the Temple and the ground on which the Temple stood. Cambodia emphasizes that in those protests it expressed its view that this unilateral determination by Thailand was incompatible with the 1962 Judgment.
3. Cambodia acknowledges that it made no protests either during the period of armed conflicts in Cambodia or during the succeeding years when, according to Cambodia, Thailand refrained from imposing its unilateral determination of the vicinity of the Temple. Nonetheless, Cambodia contends that the dispute between the Parties concerning this issue re-emerged in 2007-2008, following Cambodia’s request for the inscription of the site of the Temple on the UNESCO World Heritage List, and continued until the time of its Request for interpretation. Cambodia argues that this dispute is evidenced by a series of incidents which occurred in the vicinity of the Temple after 2008 and into early 2011, as well as by certain events and statements of the Parties following Cambodia’s request for the inscription of the site of the Temple on the UNESCO World Heritage List in 2007. In particular, Cambodia refers to the statements made by each Party in their respective correspondence with the United Nations in the context of Cambodia’s complaint concerning the alleged incursions of Thai forces into Cambodian territory in the area of the Temple.
4. For its part, Thailand denies the existence of a dispute within the meaning of Article 60 of the Statute, since the language of the 1962 Judgment is clear and in need of no interpretation. Thailand asserts that Cambodia accepted (or, at least, did not contest) that Thailand had implemented the 1962 Judgment by withdrawing to the Thai Council of Ministers’ line. According to Thailand, the events and statements relied upon by Cambodia in respect of the period following Cambodia’s request for the inscription of the site of the Temple on the UNESCO World Heritage List reflect only an ongoing delimitation dispute between the Parties. Noting that this delimitation dispute was not part of the dispute before the Court in 1962 and that the Court had expressly declined to pronounce upon it in the operative part of the 1962 Judgment, Thailand argues that this issue cannot be brought before the Court today in the context of proceedings under Article 60 of the Statute.
5. The Court observes that the events and statements dating from the period immediately following the 1962 Judgment clearly demonstrate that Thailand was of the view that the Court had left the term “vicinity of the Temple” in the second operative paragraph undefined and that Thailand could thus determine unilaterally the limits of that “vicinity”. In particular, this position is reflected in the 1962 Resolution of the Thai Council of Ministers which determined the “location of the limit of the vicinity of the [Temple], from which Thailand has the obligation to withdraw police forces, guards or keepers, on the principle that Cambodia will only obtain the ruins of the [Temple] and the ground on which the Temple stood”. In implementation of this decision, Thailand erected a barbed wire fence on the ground along the line determined by the Resolution, and posted signs stating that “the vicinity of the Temple of [Preah Vihear] does not extend beyond this limit”.
6. Contrary to Thailand’s assertions, the record before the Court shows that Cambodia did not accept Thailand’s withdrawal as fully implementing the 1962 Judgment. Rather, Cambodia protested the Thai presence on territory which, according to Cambodia, the 1962 Judgment had recognized as Cambodian. Cambodia also complained that the barbed wire fence erected by Thailand “encroach[ed] fairly significantly” upon that territory in contravention of the Court’s Judgment. In particular, the Ministry of Foreign Affairs of Cambodia in an aide-memoire issued in November 1962 stated, inter alia, that “this limit [of the temple zone]”, marked with barbed wire, “was in complete disagreement with the Court’s decision which confirmed the frontier as it appeared on the 1907 [Annex I] map”.
7. This divergence of views reappeared in the Parties’ correspondence following Cambodia’s request for the inscription of the site of the Temple on the UNESCO World Heritage List in 2007-2008. For instance, on 17 May 2007, the Thai Ministry of Foreign Affairs sent an aide-memoire to the Cambodian Minister for Foreign Affairs and the World Heritage Committee, objecting to “Cambodia’s nomination file . . . in particular, the delineation of the indicative boundary line, the monumental zone, and the development zone” depicted on the map attached to the file which, in Thailand’s view, implied “the exercise of Cambodian sovereignty in the area where [the two] countries assert different claims on boundary line”. Thailand further contended that this depiction “cannot in any way prejudice the existing international boundary between Thailand and Cambodia” as it appeared in Thailand’s own map series L7017.
8. On 18 and 19 July 2008, Cambodia sent letters to the President of the Security Council and the President of the General Assembly of the United Nations, stating inter alia that “[o]n 15 July 2008, about 50 Thai soldiers crossed into . . . Cambodia’s territory about 300 meters from the Temple of Preah Vihear”. Cambodia asserted that “[t]aking into account [the 1962 Judgment of the Court], the only map which legally delimits the border in the area of the Temple of Preah Vihear is the ‘Annex I map’ based on which the Court made its judgment”. In response, Thailand, in a letter sent on 21 July 2008 to the President of the Security Council, stated inter alia that “the area adjacent to the Temple of Preah Vihear . . . is part of Thailand’s territory” and that “Thailand’s position in this regard is fully consistent with the [1962 Judgment], which Thailand has fully and duly implemented”. Thailand further stated that “Cambodia’s territorial claim in this area is based on Cambodia’s unilateral understanding of the said ICJ Judgment that a boundary line was determined by the Court in this Judgment. Thailand contests this unilateral understanding since the ICJ ruled in this case that it did not have jurisdiction over the question of land boundary and did not in any case determine the location of the boundary between Thailand and Cambodia . . . Taking into account Article 59 of the Statute of the ICJ and the fact that the issue before the ICJ in this case was limited solely to the question of sovereignty over the region of the Temple of Preah Vihear, the boundary line claimed by Cambodia has no legal status from the Judgment.” (Emphasis added.)
9. In the opinion of the Court, these events and statements clearly demonstrate that at the time Cambodia filed its Request for interpretation the Parties had a dispute as to the meaning and scope of the 1962 Judgment. The Court now turns to the precise subject-matter of this dispute in order to ascertain whether it falls within the scope of the Court’s jurisdiction under Article 60 of the Statute.

Subject-matter of the dispute before the Court

1. In its final submissions Cambodia expressed the view that “‘[t]he Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia’ (first paragraph of the operative clause), which is the legal consequence of the fact that the Temple is situated on the Cambodian side of the frontier, as that frontier was recognized by the Court in its Judgment. Therefore, the obligation incumbent upon 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 territory’ (second paragraph of the operative clause) is a particular consequence of the general and continuing obligation to respect the integrity of the territory of Cambodia, that territory having been delimited in the area of the Temple and its vicinity by the line of the Annex I map, on which the Judgment of the Court is based.”
2. In its final submissions, Thailand requested the Court to adjudge and declare that “— the Request of the Kingdom of Cambodia asking the Court to interpret the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) under Article 60 of the Statute of the Court does not satisfy the conditions laid down in that Article and that, consequently, the Court has no jurisdiction to respond to that Request and/or that the Request is inadmissible; — in the alternative, that there are no grounds to grant Cambodia’s Request to construe the Judgment and that there is no reason to interpret the Judgment of 1962; and — to formally declare that the 1962 Judgment does not determine with binding force the boundary line between the Kingdom of Thailand and the Kingdom of Cambodia, nor does it fix the limit of the vicinity of the Temple”.
3. The Court observes that both Parties accept that there is a disagreement between them as to whether or not the Court, in the 1962 Judgment, decided with binding force that the Annex I map line represents the frontier between them in the area of the Temple. The Parties’ divergence of views on this issue is further reflected in their positions expressed in the events and statements analysed above (see paragraphs 41-44) and clarified in the course of the present proceedings. Contrary to Thailand’s assertions concerning the Court’s lack of jurisdiction in this regard, the Court reiterates that “a difference of opinion as to whether a particular point has or has not been decided with binding force also constitutes a case which comes within the terms of Article 60 of the Statute” (see paragraph 34 above).
4. Further, the Court considers that the Parties’ positions, expressed during the period following the 1962 Judgment as well as that following Cambodia’s request to have the site of the Temple inscribed on the World Heritage List (see paragraphs 41-44 above) and in the course of the present proceedings, also reveal their divergent views as to the meaning and scope of the phrase “vicinity on Cambodian territory” in the second operative paragraph of the 1962 Judgment and the relationship between that paragraph and the Court’s finding, in the first operative paragraph, that the Temple is situated in “territory under the sovereignty of Cambodia”. Cambodia maintains that the Annex I map line necessarily determines the meaning and scope of the operative clause since the Court’s recognition of that line as representing the frontier between the Parties in the Temple area constituted the “essential” reason underlying its conclusions therein. By contrast, Thailand asserts that the Court’s reasoning concerning the Annex I map line cannot be seen as “essential” and that it is therefore neither necessary nor possible to resort to that reasoning in order to elucidate the meaning and scope of the operative clause of the 1962 Judgment. Rather, Thailand asserts that the terms “territory” and “vicinity” were not explicitly defined by the Court and should be interpreted as strictly confined to the grounds on which the Temple stands and its immediate surroundings — the “Temple area”, as defined by the 1962 Resolution of the Thai Council of Ministers.
5. Finally, the Court turns to the contention that the Parties disagree about the nature of Thailand’s obligation to withdraw from “the Temple [and] its vicinity on Cambodian territory”, deriving from the second paragraph of the operative clause of the 1962 Judgment. The correspondence of the Parties surrounding the inscription of the site of the Temple on the World Heritage List, and the armed clashes that took place in the border area close to the Temple (see paragraph 28 above), reveal that the Parties disagreed, prior to the filing of Cambodia’s Request for interpretation, about where Thai personnel could lawfully be located in the light of the 1962 Judgment. That difference of views has been confirmed by the written and oral arguments of the Parties in the present proceedings.
6. According to Cambodia, Thailand’s obligation to withdraw relates to an area which the Judgment had placed under Cambodia’s sovereignty and must consequently be understood as having a continuing character, in line with the general principle of respect for territorial sovereignty and integrity of States. Thus, in its final submissions, Cambodia claims that Thailand’s obligation to withdraw “is a particular consequence of the general and continuing obligation to respect the integrity of the territory of Cambodia” (see paragraph 13 above). Thailand accepts that it has a “general and continuing obligation” under international law to respect the sovereignty and territorial integrity of Cambodia. However, it rejects Cambodia’s assertion that “the obligation to withdraw as specified in the [1962] Judgment has the same character”. Rather, Thailand maintains that this latter obligation applied to its relations with Cambodia only “in respect of one place at one time” and that it fully discharged that obligation once it withdrew from the vicinity of the Temple in accordance with the 1962 Resolution of the Thai Council of Ministers.
7. In the light of the above considerations, the Court concludes that the dispute between the Parties as to the meaning and scope of the 1962 Judgment relates to three specific aspects thereof. First, there is a dispute over whether the 1962 Judgment did or did not decide with binding force that the line depicted on the Annex I map constitutes the frontier between the Parties in the area of the Temple. Secondly, there is a closely related dispute concerning the meaning and scope of the phrase “vicinity on Cambodian territory”, referred to in the second operative paragraph of the 1962 Judgment, a paragraph which the Court stated was a consequence of the finding, in the first operative paragraph, that the Temple is situated in “territory under the sovereignty of Cambodia”. Lastly, there is a dispute regarding the nature of Thailand’s obligation to withdraw imposed by the second paragraph of the operative part.

Admissibility of Cambodia’s Request for interpretation

1. Thailand maintains that Cambodia’s Request for interpretation is inadmissible since its real purpose is not to obtain the Court’s interpretation of the 1962 Judgment but, rather, to obtain the Court’s ruling on the Parties’ delimitation dispute in the area of the Temple by having the Court recognize with binding force that the Annex I map line constitutes their common frontier in that area. Thailand recalls that the Court explicitly refused to pronounce on the Parties’ common frontier in the Temple area in 1962 and asserts that it is therefore barred from determining this question now, through the interpretation of the 1962 Judgment.
2. Cambodia insists that it is not requesting the Court to delimit any boundary between the Parties on the basis of the Annex I map. Rather, it is “merely asking the Court to explain the findings that it reached in its 1962 Judgment . . . in particular as regards the relationship between those findings and the meaning and scope of the dispositif of the Judgment”.
3. The Court recalls that the process of interpretation is premised upon the “primacy of the principle of res judicata” which “must be maintained” (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), pp. 36-37, para. 12). Accordingly, as the Court has previously held: “[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.” (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402; 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), pp. 36-37, para. 12.)
4. Having regard to the Parties’ divergent views over the meaning and scope of the 1962 Judgment, identified above (see paragraph 52), the Court considers that there is a need for the interpretation of the second operative paragraph of the 1962 Judgment and of the legal effect of what the Court said regarding the Annex I map line. Within these limits, Cambodia’s Request is admissible. Nevertheless, in line with the Court’s previous observation on this matter, in as far as Cambodia’s Request for interpretation “may go further, and seek ‘to obtain an answer to questions not [decided with binding force]’, or to achieve a revision of the Judgment, no effect can be given to it” (Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 223, para. 56).

Conclusion

1. In the light of the foregoing, the Court concludes that a dispute exists between the Parties as to the meaning and scope of the 1962 Judgment pursuant to Article 60 of the Statute. Accordingly, the Court has jurisdiction to entertain Cambodia’s Request for interpretation of the 1962 Judgment, and the Request is admissible.

THE INTERPRETATION OF THE 1962 JUDGMENT

1. The Court now turns to the interpretation of the 1962 Judgment.

Positions of the Parties

1. Cambodia maintains that the first and second operative paragraphs of the Judgment are “symbiotically linked”: in the first paragraph, the Court held that the Temple was “situated in territory under the sovereignty of Cambodia”, while in the second paragraph it found, in consequence, that Thailand was required to withdraw the personnel which it had stationed “at the Temple, or in its vicinity on Cambodian territory”. According to Cambodia, the requirement to withdraw, in the second operative paragraph, can only be understood as a requirement that Thailand should withdraw the personnel from the Temple, and the Cambodian territory in its vicinity, to Thai territory and that the Cambodian territory referred to in the second operative paragraph coincides with the territory identified as being under Cambodian sovereignty in the first operative paragraph. In Cambodia’s view, the obligation to withdraw has a continuing character, in the sense that the requirement that Thailand withdraw its forces implied an obligation not to return them at any future time to the Cambodian territory identified in the Judgment.
2. For Cambodia, these findings in the operative part are the consequence of the Court’s determination, in the reasoning of the 1962 Judgment, that the Annex I map line constituted the frontier between the Parties in the region of the Temple (see paragraph 20 above). Cambodia maintains that this part of the reasoning stated a condition essential for the findings contained in the operative part of the 1962 Judgment and thus has binding force. Accordingly, the area of territory to which the Court referred, in the first operative paragraph, and from which, in the second operative paragraph, it required Thailand to withdraw, extended beyond the confines of the Temple itself and included all of the land in the disputed area up to the Annex I map line. Cambodia considers that this area encompasses the whole promontory of Preah Vihear and the hill of Phnom Trap as far north as the Annex I map line. Cambodia rejects the Thai Council of Ministers’ line (see paragraph 22 above) as a unilateral action which ran counter to the reasoning of the 1962 Judgment. According to Cambodia, the practice of the Parties since 1962 has no relevance for the interpretation of the 1962 Judgment, although it denies that its conduct amounted to acceptance of Thailand’s interpretation of the 1962 Judgment. Cambodia maintains that the Memorandum of Understanding deals only with the demarcation of the frontier, thereby implying that delimitation of the frontier has already occurred.
3. Thailand maintains that the dispute which was before the Court in 1962 concerned territorial sovereignty, not delimitation of a frontier, and that the 1962 Judgment decided only that the Temple fell under the sovereignty of Cambodia. The Annex I map was significant only as evidence of whether the Temple lay in Cambodian territory and did not serve the purpose of defining the boundary, a task which had to be carried out by agreement between the Parties. In Thailand’s view, it would have been contrary to the principle non ultra petita for the Court to have ruled upon the boundary line, since Cambodia had not included any request for a ruling on the map in its original submissions and the Court had declined to entertain the new submissions which Cambodia had advanced at the end of the oral proceedings.
4. Thailand also argues that more than one version of the Annex I map is in existence and that the different versions contain important discrepancies. In addition, Thailand claims that there are important deficiencies in the Annex I map, including topographical and positioning errors, that it is imprecise and that it departs in significant respects from the watershed line stipulated in the 1904 Treaty. According to Thailand, it would be impossible to transpose the Annex I map line onto a modern map without more information.
5. In any case, Thailand contends, the Annex I map was only one of the reasons on which the Judgment was based, since the Court also relied upon entirely distinct grounds, in particular, the visit to the Temple in 1930 by Prince Damrong of Thailand, which the Court described as “significant” and considered to be recognition by Thailand of the sovereignty of Cambodia (then a protectorate of France) over the Temple (I.C.J. Reports 1962, pp. 30-31). Thailand concludes that the 1962 Judgment decided only that Cambodia had sovereignty over the small parcel of land on which the ruins of the Temple are located, the area which was later depicted on the map attached to the 1962 Resolution of the Thai Council of Ministers. According to Thailand, the Judgment did not deal with sovereignty over the remainder of the Preah Vihear promontory or the hill of Phnom Trap.
6. Thailand denies that the obligation to withdraw in the second operative paragraph of the 1962 Judgment has a continuing character, in the sense suggested by Cambodia. Thailand argues that it discharged its obligation when it withdrew its personnel behind the Council of Ministers’ line and that Cambodia accepted that line when Prince Sihanouk visited the Temple in 1963 (see paragraph 23 above). Thereafter, the obligation not to enter Cambodian territory was derived not from the 1962 Judgment but from the duty, arising under general international law, of one State to respect the territorial integrity of another.
7. Thailand concludes that the delimitation of the frontier in the relevant area remains to be accomplished and that the Memorandum of Understanding provides the mechanism for the Parties to undertake that task.

The role of the Court under Article 60 of the Statute

1. The Court begins by recalling that its role under Article 60 of the Statute is to clarify the meaning and scope of what the Court decided in the judgment which it is requested to interpret (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), I.C.J. Reports 1950, p. 402). Accordingly, the Court must keep strictly within the limits of the original judgment and cannot question matters that were settled therein with binding force, nor can it provide answers to questions the Court did not decide in the original judgment.
2. While the existence of a dispute between the parties regarding the original judgment is a prerequisite for interpretation under Article 60 of the Statute, the way in which that dispute is formulated by one or both of the parties is not binding on the Court. As the Permanent Court of International Justice explained: “the Court does not consider itself as bound simply to reply ‘yes’ or ‘no’ to the propositions formulated in the submissions of [the Applicant]. It adopts this attitude because, for the purpose of the interpretation of a judgment, it cannot be bound by formulae chosen by the Parties concerned, but must be able to take an unhampered decision.” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, pp. 15-16.)
3. In determining the meaning and scope of the operative clause of the original Judgment, the Court, in accordance with its practice, will have regard to the reasoning of that Judgment to the extent that it sheds light on the proper interpretation of the operative clause.
4. The pleadings and the record of the oral proceedings in 1962 are also relevant to the interpretation of the Judgment, as they show what evidence was, or was not, before the Court and how the issues before it were formulated by each Party.
5. Thailand argues that the principle of non ultra petita precluded the Court from going beyond the submissions of the Parties and that the 1962 Judgment must be interpreted accordingly.
6. The principle of non ultra petita is well established in the jurisprudence of the Court (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia/Peru), Judgment, I.C.J. Reports 1950, p. 402; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, pp. 18-19, para. 43) and is one reason why the claims contained in the final submissions of the Parties in the original case are of relevance in interpreting the 1962 Judgment. Nevertheless, that principle cannot justify an interpretation which runs counter to the terms of the 1962 Judgment. The Court in 1962 necessarily made an assessment of the scope of the petitum before it; Article 60 of the Statute does not give the Court the power today to substitute a different assessment for that made at the time of the Judgment.
7. Cambodia suggests that the headnote to the 1962 Judgment demonstrated that the Judgment determined the course of the frontier in the relevant area.
8. Under Article 95, paragraph 1, of the Rules of Court (Article 74, paragraph 1, of the Rules of Court of 1946 applicable in 1962), the headnote is not one of the elements of the Judgment and it does not form part thereof. Moreover, the purpose of the headnote is only to give the reader a general indication of the points examined in a judgment; it does not constitute an authoritative summary of what the Court has actually decided. The Court does not consider that the headnote to the 1962 Judgment assists in resolving the questions of interpretation raised in the present proceedings.
9. Thailand makes extensive reference to the conduct of the Parties between 15 June 1962, when the Judgment was delivered, and 2007-2008, when the present dispute may be said to have crystallized. The principal purpose for which Thailand refers to that conduct is in connection with its argument that there is no dispute, within the meaning of Article 60, between the Parties, an issue to which that conduct is of course relevant (see paragraphs 38-45 above). However, Thailand suggests that this conduct is also relevant to the interpretation of the Judgment.
10. A judgment of the Court cannot be equated to a treaty, an instrument which derives its binding force and content from the consent of the contracting States and the interpretation of which may be affected by the subsequent conduct of those States, as provided by the principle stated in Article 31, paragraph 3 (b), of the 1969 Vienna Convention on the Law of Treaties. A judgment of the Court derives its binding force from the Statute of the Court and the interpretation of a judgment is a matter of ascertaining what the Court decided, not what the parties subsequently believed it had decided. The meaning and scope of a judgment of the Court cannot, therefore, be affected by conduct of the parties occurring after that judgment has been given. More generally, as the Permanent Court of International Justice made clear, “the Court, when giving an interpretation, refrains from any examination of facts other than those which it has considered in the judgment under interpretation, and consequently all facts subsequent to that judgment” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 21).