18 JUILLET 2011
ORDONNANCE
DEMANDE EN INTERPRÉTATION DE L’ARRÊT DU 15 JUIN 1962 EN L’AFFAIRE DU TEMPLE DE PRÉAH VIHÉAR (CAMBODGE c. THAÏLANDE)
(CAMBODGE c. THAÏLANDE)
DEMANDE EN INDICATION DE MESURES CONSERVATOIRES
REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 15 JUNE 1962 IN THE CASE CONCERNING THE TEMPLE OFPREAH VIHEAR (CAMBODIA v. THAILAND)
(CAMBODIA v. THAILAND)
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
18 JULY 2011
ORDER
INTERNATIONAL COURT OF JUSTICE
YEAR 2011
2011 18 July General List No. 151
18 July 2011
REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 15 JUNE 1962 IN THE CASE CONCERNING THE TEMPLE OFPREAH VIHEAR (CAMBODIA v. THAILAND)
Judges Koroma, Al-Khasawneh, Skotnikov, Canqado Trindade, Judges ad hoc Guillaume, Cot;
Present: President Owada; Vice-President Tomka;
Simma, Abraham, Keith, Bennouna, Yusuf, Greenwood, Xue, Donoghue; Registrar Couvreur.
The International Court of Justice, Composed as above, After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court,
(CAMBODIA v. THAILAND)
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
ORDER
Having regard to the Application instituting proceedings filed in the Registry on 28 April 2011 by the Kingdom of Cambodia (hereinafter “Cambodia”), whereby, referring to Article 60 of the Statute of the Court and Article 98 of the Rules of Court, Cambodia requests the Court to interpret the Judgment it rendered on 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (hereinafter the “1962 Judgment”);
Makes the following Order :
5. Whereas, at the end of its Application, Cambodia presents the following request:
“Given that ‘the 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, and on the basis of the facts and legal arguments set forth above, Cambodia respectfully asks the Court to adjudge and declare that:
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 on the Annex I map, on which the Judgment of the Court is based”;
6. Whereas on 28 April 2011, having filed its Application, Cambodia, referring to Article 41 of the Statute and Article 73 of the Rules of Court, also submitted a request for the indication of provisional measures in order to “cause [the] incursions onto its territory [by Thailand] to cease” pending the Court’s ruling on the Request for interpretation of the 1962 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;
— that Thailand refrain from any act or action which could interfere with the rights of Cambodia or aggravate the dispute in the principal proceedings”;
and whereas it asks the Court, on account of the gravity of the situation, to consider its request for the indication of provisional measures as a matter of urgency;
On behalf of Cambodia: H.E. Mr. Hor Namhong, Agent,
On behalf of Thailand: Sir Franklin Berman, Mr. Jean-Marc Sorel; H.E. Mr. Virachai Plasai, Agent, Mr. Alain Pellet, Mr. James Crawford, Mr. Donald McRae;
whereas, during the hearings, a question was put by a Member of the Court to both Parties, to which replies were given in writing after the closure of the oral proceedings; and whereas each Party submitted to the Court its comments on the replies given by the other Party to that question;
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“— 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;
— that Thailand refrain from any act or action which could interfere with the rights of Cambodia or aggravate the dispute in the principal proceedings”;
“[i]n accordance with Article 60 of the Rules of Court and having regard to the Request for the indication of provisional measures of the Kingdom of Cambodia and its oral pleadings . . . to remove the case introduced by the Kingdom of Cambodia on 28 April 2011 from the General List”;
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Dispute as to the meaning or scope of the 1962 Judgment and jurisdiction of the Court
27. Whereas Cambodia maintains, secondly, that a dispute exists between the Parties as to the meaning and scope of the phrase “vicinity on Cambodian territory” used in the second paragraph of the operative clause of the 1962 Judgment to designate the area from which the Thai forces were obliged to withdraw; whereas, according to Cambodia, Thailand, believing that the frontier in the area of the Temple has not been established, is laying claim to “territory beyond the strict precincts of the Temple” and occupying that area regardless of the Judgment, in particular the second paragraph of the operative clause;
28. Whereas Cambodia argues, thirdly, that a dispute exists as to whether, as it claims, the obligation deriving from the second paragraph of the operative clause of the 1962 Judgment is of a general and continuing character, in so far as it is the consequence of the obligation incumbent upon Thailand not to infringe Cambodia’s territorial sovereignty in the area of the Temple;
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29. Whereas Thailand maintains that there is no dispute as to the meaning or scope of the 1962 Judgment; whereas it does not dispute the fact that the Temple of Preah Vihear is situated in Cambodian territory, as is recognized in the first paragraph of the operative clause of that Judgment; whereas it claims furthermore not to dispute the fact that Thailand was under an obligation, pursuant to the second paragraph of the operative clause, to withdraw its military forces from the Temple or from its vicinity in so far as those forces were situated in Cambodian territory;
whereas it asserts that this “instantaneous” obligation has been fully met by Thailand and cannot give rise to an interpretative judgment; and whereas Thailand maintains, in consequence, that the Court manifestly lacks jurisdiction “to rule on Cambodia’s Request for interpretation” and, therefore, to indicate the provisional measures requested;
30. Whereas Thailand claims that the sole aim of Cambodia’s Application is to have the Court decide that the frontier between the two countries derives from the Annex I map; whereas Thailand observes that while, in the reasoning of its 1962 Judgment, the Court did indeed base itself on the Annex I map in order to decide that the Temple was situated in Cambodian territory, it did not deduce that the entire frontier in this area derived from that map; and whereas Thailand further notes that the Court clearly refused to rule, in the operative clause of its Judgment, on Cambodia’s submissions to it regarding both the legal status of the Annex I map and the frontier line in the disputed area;
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Plausible character of the alleged rights in the principal request and link between these rights and the measures requested
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Plausible character of the alleged rights in the principal request
35. Whereas Cambodia contends that, in order to demonstrate the plausible character of the rights which it alleges in its request for interpretation and which it is seeking to protect — namely, the right to respect for its sovereignty in the area of the Temple of Preah Vihear and, more generally, its right to territorial integrity — it is sufficient for it to establish that the existence of these rights may reasonably be argued; and whereas Cambodia points out that these rights are plausible in a number of respects, and in particular because they were determined with binding force by a judgment of the Court;
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36. Whereas Thailand maintains that Cambodia, in order to establish the violation of the rights it claims to possess under the 1962 Judgment, refers to incidents that occurred at locations some distance from the Temple; whereas it asserts that, no matter how the 1962 Judgment is construed, the Court did not decide anything about such incidents or the localities where they
occurred; whereas, according to Thailand, Cambodia has no plausible right under Article 60 of the Statute to obtain an interpretation in respect of those incidents; whereas, moreover, the rights invoked in the request for interpretation must be based on the facts examined in the 1962 Judgment and not on facts subsequent to that Judgment; whereas Thailand claims that the rights invoked by Cambodia in its request nonetheless concern facts which took place long after the 1962 Judgment; and whereas, therefore, according to Thailand, such rights are not plausible for the purpose of the present request for the indication of provisional measures;
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37. Whereas it should, at the outset, be made clear that Article 60 of the Statute does not impose any time-limit on requests for interpretation; whereas the Court may entertain a request for interpretation in so far as there exists a dispute as to the meaning or scope of a judgment; and whereas such a dispute can, in itself, certainly arise from facts subsequent to the delivery of that judgment;
38. Whereas, at this stage in the proceedings, the Court does not have to rule definitively on the interpretation put forward by Cambodia of the 1962 Judgment and on the rights it claims to derive therefrom; and whereas, for the purposes of considering the request for the indication of provisional measures, the Court need only determine whether those rights are at least plausible;
Link between the alleged rights and the measures requested
42. Whereas Cambodia maintains that the aim of the provisional measures requested is to protect rights which it invokes in its request for interpretation of the 1962 Judgment, namely, its sovereignty over the area of the Temple of Preah Vihear and, more generally, its territorial integrity; whereas it notes that Thailand’s territorial claims cover the entire area of the Temple, beyond the strict precincts of the latter, and that these claims are reflected in the presence of Thai armed forces in that area, forces which Cambodia requests be withdrawn immediately and unconditionally; whereas Cambodia also asks the Court to indicate the measures requested so as to avoid an aggravation of the dispute in the principal proceedings; and whereas it is upon the rights thus asserted by Cambodia that the Court, in Cambodia’s view, must focus in its consideration of the request for the indication of provisional measures;
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43. Whereas Thailand claims that Cambodia’s request for the indication of provisional measures does not meet the condition whereby a link must exist between the rights which form the subject of the proceedings before the Court on the merits of the case and the provisional measures being sought; whereas Thailand asserts in particular that Cambodia’s request refers to a matter that cannot be the subject of an interpretation — the status of the Annex I map — and that it is based on allegations made in respect of facts that occurred in an area remote from that of the Temple of Preah Vihear and, consequently, unrelated to the area covered by the request for interpretation;
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44. Whereas, in proceedings on interpretation, the Court is called upon to clarify the meaning and the scope of what the Court decided with binding force in a judgment (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia/Peru), Judgment, I.C.J. Reports 1950, p. 402; 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; 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. 328, para. 63); whereas Cambodia is seeking clarification of the meaning and the scope of what the Court decided with binding force in the 1962 Judgment in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand); whereas, in its Application, Cambodia requests the Court to specify the meaning and scope of the operative clause of that Judgment in respect of the extent of its sovereignty in the area of the Temple (see paragraph 5 above); and whereas, in its request for the indication of provisional measures (see paragraph 11 above), Cambodia, pending the Court’s final decision, is precisely seeking the protection of the rights to sovereignty over this area which it claims to derive from the operative clause of the 1962 Judgment;
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;
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Risk of irreparable prejudice; urgency
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48. Whereas Cambodia refers to numerous armed incidents which allegedly took place as from 15 July 2008 along the frontier between the two States in the area of the Temple of Preah Vihear after the Temple was included on the UNESCO World Heritage list; whereas these armed incidents allegedly caused damage to the Temple, as well as loss of human life and bodily injuries; whereas Cambodia points out that, in a letter dated 21 July 2008 and addressed to the President of the Security Council, the Permanent Representative of Thailand to the United Nations stated that his Government claimed an area “adjacent” to the Temple of Preah Vihear and indicated that the frontier between Cambodia and Thailand in that area was the subject of negotiations between the two States; whereas Cambodia also refers to armed incidents which are said to have taken place between the parties in the area of the Temple in October 2008 and on 2 and 3 April 2009; whereas it adds that armed incidents occurred again between the Parties in that area
between 4 and 7 February 2011; whereas Cambodia notes that these incidents led, on its initiative, to a meeting of the Security Council on 14 February 2011, where the Security Council called for a permanent ceasefire to be established between the two parties and expressed its support for the Association of Southeast Asian Nations (hereinafter “ASEAN”) in its efforts to find a solution to the conflict; whereas Cambodia refers in this respect to the proposal by the Chair of ASEAN to send Indonesian observers into the field so as to ensure the said ceasefire, and alleges that this proposal failed because of the conditions laid down by Thailand for its acceptance; whereas Cambodia claims that further incidents took place from 22 April 2011, not only in the area of the Temple of Preah Vihear, but also along the frontier near the Temples of Ta Moan/Ta Muen and Ta Krabei/Ta Kwai, situated approximately 150 km to the west of the Temple of Preah Vihear, while making it clear that these latest incidents are not included in its request for the indication of provisional measures; whereas it maintains that the incidents which took place in the area of the Temple of Preah Vihear, and which are attributable to Thailand, have not only caused irreparable damage to the Temple itself, a UNESCO World Heritage site, but above all have resulted in the loss of human life, bodily injuries and the displacement of local people; and whereas Cambodia therefore requests the Court “to indicate provisional measures in order to stop any more destruction of the Temple once and for all, to prevent further casualties, and to preserve its rights over the area of the Temple of Preah Vihear”;
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51. Whereas, according to Thailand, the numerous armed incidents which have taken place in the area of the Temple were provoked by the Cambodian armed forces and caused loss of human life, bodily injuries, the displacement of local people, and material damage in Thailand’s territory; whereas it claims that the Thai armed forces responded to these attacks “with restraint and proportionality”, duly exercising Thailand’s right to self-defence; whereas it observes in particular that, between 4 and 7 February 2011, armed incidents took place at several locations along the frontier or in Thai territory within a radius of approximately 10 km from the Temple of Preah Vihear; whereas it adds that similar incidents took place between 22 April and 3 May 2011
near the Temples of Ta Krabei/Ta Kwai and Ta Moan/Ta Muen, situated 150 km from the Temple of Preah Vihear, and observes that these temples, because of their distance from the Temple of Preah Vihear, are not, however, covered by the 1962 Judgment; whereas Thailand nevertheless acknowledges that, on 26 April 2011, a 20-minute exchange of fire took place between the two sides some 2 km from the Temple of Preah Vihear; and whereas it maintains that the oral ceasefire of 28 April 2011 concerns the sector of the Ta Krabei/Ta Kwai and Ta Moan/Ta Muen Temples, and not that of the Temple of Preah Vihear;
52. Whereas, according to Thailand, the only incidents that Cambodia can rely on for the purposes of a provisional measure are the incidents that took place in February 2011, “almost three months before the request for provisional measures was made”, the exchange of fire on 26 April 2011, which resulted in no casualties, and the other incidents in April 2011 which occurred well beyond the area to which the request for interpretation relates; whereas Thailand further maintains that a team of Indonesian observers was created to help monitor the military situation between the two States in the border area; and whereas it concludes from the foregoing that there is no real and imminent risk that irreparable prejudice may be caused to the rights in dispute;
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57. Whereas, taking account of the conclusions it has reached above, the Court considers that it can, in this case, indicate provisional measures, as provided for in Article 41 of its Statute, and that the circumstances require it to do so;
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60. Whereas the Court has considered the terms of the provisional measures requested by Cambodia; whereas it does not find, in the circumstances of the case, that the measures to be indicated must be the same as or limited to those sought by Cambodia; and whereas the Court, having considered the material before it, deems it appropriate to indicate measures addressed to both Parties;
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66. Whereas the Court reminds the Parties that the Charter of the United Nations imposes an obligation on all Member States of the United Nations to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; whereas the Court further recalls that United Nations Member States are also obliged to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered; and whereas both Parties are obliged, by the Charter and general international law, to respect these fundamental principles of international law;
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67. Whereas the Court’s orders “on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations with which both Parties are required to comply (see, for example, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 258, para. 263);
68. Whereas the decision given in the present proceedings on the request for the indication of provisional measures in no way prejudges any question that the Court may have to deal with relating to the Request for interpretation;
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69. For these reasons, The Court,
(A) Unanimously,
Rejects the Kingdom of Thailand’s request to remove the case introduced by the Kingdom of Cambodia on 28 April 2011 from the General List of the Court;
(B) Indicates the following provisional measures:
By eleven votes to five,
Both Parties shall immediately withdraw their military personnel currently present in the provisional demilitarized zone, as defined in paragraph 62 of the present order, and refrain from any military presence within that zone and from any armed activity directed at that zone;
in favour: Vice-President Tomka; Judges Koroma, Simma, Abraham, Keith, Bennouna, Skotnikov, Can?ado Trindade, Yusuf, Greenwood; Judge ad hoc Guillaume;
against: President Owada; Judges Al-Khasawneh, Xue, Donoghue; Judge ad hoc Cot;
By fifteen votes to one,
Thailand shall not obstruct Cambodia’s free access to the Temple of Preah Vihear or Cambodia’s provision of fresh supplies to its non-military personnel in the Temple;
in favour: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Bennouna, Skotnikov, Can?ado Trindade, Yusuf, Greenwood, Xue; Judges ad hoc Guillaume, Cot;
against: Judge Donoghue;
By fifteen votes to one,
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;
in favour: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Bennouna, Skotnikov, Candado Trindade, Yusuf, Greenwood, Xue; Judges ad hoc Guillaume, Cot;
against: Judge Donoghue;
By fifteen votes to one,
Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve;
in favour: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Bennouna, Skotnikov, Candado Trindade, Yusuf, Greenwood, Xue; Judges ad hoc Guillaume, Cot;
against: Judge Donoghue;
(C) By fifteen votes to one,
Decides that each Party shall inform the Court as to its compliance with the above provisional measures;
in favour: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Bennouna, Skotnikov, Candado Trindade, Yusuf, Greenwood, Xue; Judges ad hoc Guillaume, Cot;
against: Judge Donoghue;
(D) By fifteen votes to one,
Decides that, until the Court has rendered its judgment on the request for interpretation, it shall remain seised of the matters which form the subject of this Order.
in favour: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Bennouna, Skotnikov, Candado Trindade, Yusuf, Greenwood, Xue; Judges ad hoc Guillaume, Cot;
against: Judge Donoghue.
Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eighteenth day of July, two thousand and eleven, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Kingdom of Cambodia and the Government of the Kingdom of Thailand, respectively.
(Signed) Hisashi Owada, President.
(Signed) Philippe Couvreur, Registrar.
President Owada appends a dissenting opinion to the Order of the Court; Judge Koroma appends a declaration to the Order of the Court; Judge Al-Khasawneh appends a dissenting opinion to the Order of the Court; Judge Canqado Trindade appends a separate opinion to the Order of the Court; Judges Xue and Donoghue append dissenting opinions to the Order of the Court; Judge ad hoc Guillaume appends a declaration to the Order of the Court; Judge ad hoc Cot appends a dissenting opinion to the Order of the Court.
(Initialled) H. O.
(Initialled) Ph. C.
Esta entrada fue modificada por última vez en 22/07/2011 11:59
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