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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 CHESTERMAN Open the ORCID record for Simon CHESTERMAN [Opens in a new window]
Simon CHESTERMAN*
Affiliation:
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.

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 

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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.

References

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 889CrossRefGoogle Scholar; Miguel F.P. DE FIGUEIREDO, and Eric A. POSNER, , “Is the International Court of Justice Biased?” (2005) 34 Journal of Legal Studies 599Google Scholar.

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 35−40Google Scholar.

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 147CrossRefGoogle Scholar.

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 1CrossRefGoogle Scholar; I. Made Andi ARSANA, , “Maritime Delimitation in the Singapore Strait: The Next Step for Indonesia, Malaysia and Singapore” (2010) 14 Hydro International 23Google Scholar.

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)Google Scholar (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 129Google Scholar.

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 51−52Google Scholar (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)Google Scholar, 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 161−163Google Scholar.