Monday, November 18, 2013
Every
day seems to bring new _ and often conflicting _ comments about the Nov
11 Preah Vihear temple decision by the International Court of Justice
(ICJ).
 |
| REUTERS/POK CHADARA |
Perhaps this is because an official translation of the decision has not yet been prepared, as well as the desire by various factions to advance their own diverse political agenda.
Certainly the Thai government and media at the outset did its best to put a positive spin on the decision, with the Bangkok Post's banner headline proclaiming "ICJ delivers win-win ruling" (Nov 12). But, as some have suggested, the "win" for Thailand was perhaps more in the nature of "it could have been even worse".
Indeed, on virtually every legal and factual point presented to the court by Thailand, the court ruled in favour of Cambodia.
The decision was unanimous: 17-0. Even the judge ad hoc selected by Thailand to sit on the court ruled against it. This suggests that Thailand's legal case was always weak, despite the extremely well-prepared and spirited defence before the court in April 2013.
On the other hand, it is true that Cambodia did not get everything it had asked for: the entire 4.6 sq km disputed area. But that claim was always too ambitious, given the limited scope of the 1962 judgement. As pointed out by the court in 2013, the 1962 decision involved "a dispute regarding territorial sovereignty over the area in which the temple was located and that it was not engaged in delimiting the frontier". The reason was because when Cambodia first brought the case to the court in 1959 it had requested only a declaration "that the territorial sovereignty over the temple of Preah Vihear belongs to the Kingdom of Cambodia". It had not asked for a boundary determination (which it could have done), and Cambodia's later effort to expand its request to include a frontier determination was rejected as having come too late in the proceedings.
However, as the court said on Nov 11, "the Annex I map played a central role in the reasoning of the court" in 1962.
After concluding from the facts that Thailand had indeed accepted the Annex I map line as representing the frontier line in the area, it was clear that the temple was, of necessity, situated in Cambodian territory.
But just how much of the area in question was "Cambodian territory"? It was due to this ambiguity that Cambodia filed with the ICJ in 2011 a request for interpretation of the 1962 judgement. In the event of a dispute over the meaning or scope of a previous judgement, the court always retains jurisdiction to clarify the matter, but cannot go beyond or in any way reconsider what had been previously decided.
Consequently, the court was constrained on what it could do in reference to the boundary line issue this time around.
However, it could, and did, clarify what it had meant in 1962 when it had ordered Thailand to remove its troops from the temple "or in its vicinity on Cambodian territory". Relying on the records of the 1962 case, and noting that the temple "is located on an easily identifiable geographical feature" _ a promontory _ the court concluded that the word "vicinity" as used in 1962 "must be construed as extending to the whole of the promontory, rather than being confined to the part of it chosen by the Thai Council of Ministers in 1962".
But just how much land is in this promontory and where are the exact boundary lines? The court in paragraph 98 gave some very clear reference points: "In the north, the limit of the promontory is the Annex I map line, from a point to the north-east of the temple where that line abuts the escarpment to a point in the north-west where the ground begins to rise from the valley, at the foot of the hill of Phnom Trap."
The court acknowledged Thailand's argument about "the difficulty of transposing the Annex I map and thus of ascertaining the precise location on the ground of the Annex I map line in the area described". However, as the 1962 judgement did not address that question, the court said it could not do so now because of its limited jurisdiction to only interpret previous judgements.
Nonetheless, the court went on to state that Thailand and Cambodia "have an obligation to implement the judgement of the court in good faith" and that "it is of the essence of that obligation that it does not permit either party to impose a unilateral solution".
It is therefore now clear that the promontory _ and thus Cambodian sovereignty _ extends at least as far as "the foot of the hill of Phnom Trap, that is to say: where the ground begins to rise from the valley".
Further negotiations are still required, however, to determine exactly where on the ground the Annex I map line is from the escarpment in the northeast to the foot of the hill in the northwest.
On the other hand, the court stated: "That is not to say that the 1962 judgement treated Phnom Trap as part of Thailand; the court did not address the issue of sovereignty over Phnom Trap, or any other area beyond the limits of the promontory of Preah Vihear."
What this means is significant: while the entire promontory has now been removed from the area previously referred to as the "4.6 sq km disputed area," the remaining land in that area continues to be just as it was before: disputed.
As such, the area can easily remain a flashpoint until both sides accept that only some sort of mutual compromise is the way forward.
Continuing to insist on having 100% of the remaining disputed area, by either country, will do nothing but ensure at least another 51 years of needless tension and lost development opportunities.
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