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Written Observations of the Kingdom of Thailand INTERNATIONAL COURT OF JUSTICE 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) WRITTEN OBSERVATIONS OF THE KINGDOM OF THAILAND 21 NOVEMBER 2011 TABLE OF CONTENTS CHAPTER I: INTRODUCTION ....................1 A. Procedural Matters ...............................1 B. The 1962 Judgment and Cambodia’s Request for Interpretation ...................................2 C. Thailand’s Implementation of the 1962 Judgment .......6 D. Cambodia’s Calling into Question of the Status Quo ...10 E. The Incidents at the Border .......................13 F. Outline of These Written Observations ..............15 CHAPTER II: THE DISPUTE IN THE ORIGINAL PROCEEDINGS (1959-1962). .19 A. The Scope of the Dispute in the Preliminary Objections Phase ...............................19 1. Historical Background .........................19 2. The Question in Cambodia’s 1959 Application ......21 3. The Treatment of the Question in the Preliminary Objections Phase. .23 B. The Scope of the Dispute in the Pleadings of the Parties on the Merits .........................28 1. The Subject Matter of the Initial Dispute Was Restricted to Sovereignty over the Temple of Phra Viharn ..................................29 (a) The Existence of Concurrent Claims of Sovereignty over the Temple .................31 (b) The Territorial Scope of the Dispute Was Circumscribed to the Ground on Which the Temple Stood ..........................40 2. The Subject Matter of the Dispute Did Not Include the Determination of the Boundary ................46 iii (a) The Role of the Annex I Map in Cambodia’s Argumentation ............................46 (b) The Map Line as a Line for Determining the Location of the Temple .....................50 (c) The Parties’ Lack of Interest in the Map Line as a Boundary .............................55 3. The Petitum as Defined in the Admissible Submissions of the Parties ......................61 C. Conclusion ....................................76 CHAPTER III: THE MEANING AND SCOPE OF THE 1962 JUDGMENT ..............79 A. Introduction ...................................79 B. The Scope and Content of the Dispositif .............81 C. The Narrow Scope of the Dispute as Defined by the Court ...................................86 1. The Link with the Judgment of the Court on Preliminary Objections .........................86 2. The Court’s View of the Limited Scope of the Dispute ..................................87 3. The Scope and Content of the Dispositif Was Circumscribed by the Petitum ....................90 D. The Terms Used by the Court Circumscribed the Issue in Dispute .............................95 1. The Meaning of the Term “Temple” in Operative Paragraph 1 ..........................96 2. The Meaning of the Phrase “at the Temple, or in Its Vicinity on Cambodian Territory” in Operative Paragraph 2 ..........................97 3. The Meaning of the Term “Temple Area” in Operative Paragraph 3 .........................102 4. The Meaning of the Term “Region” ..............108 iv E. The Role of the Annex I Map Line in the Reasoning of the Court. ......................111 F. Conclusion ...................................118 CHAPTER IV: LACK OF JURISDICTION OF THE COURT AND INADMISSBILITY OF THE REQUEST FOR INTERPRETATION ................119 A. Absence of a Dispute as to the Meaning and Scope of the Judgment ...............................123 1. No Dispute on the Meaning and Scope of the Operative Part of the 1962 Judgment ..........125 (a) No Dispute on Paragraph 1 of the Dispositif ....128 (b) No Dispute on Paragraph 2 of the Dispositif ....131 2. No Dispute over Thailand’s Compliance with the 1962 Judgment. ...........................132 (a) The 1962 Documents ......................136 (b) Prince Sihanouk’s Pilgrimage to the Temple on 5 January 1963 and Cambodia’s Subsequent Satisfaction with Implementation ...146 (c) The Post-1963 Period: New Armed Clashes and Continuing Negotiations for the Resumption of Diplomatic Relations ..........152 (d) The Post-1990 Period ......................158 (e) In Any Case, Disputes over Implementation Are outside the Scope of Article 60 ...........164 B. Cambodia’s Disregard for the Principle of Res Judicata ................................166 1. The Object of Cambodia’s Request Does Not Concern Points Decided with Binding Force by the Court. 169 2. The Purpose of Cambodia’s Request Is to Revive a Claim Relating to Delimitation Declared Inadmissible in 1962 ..........................179 v (a) The Court Declared Inadmissible Cambodia’s Claim Relating to Delimitation ..............180 (b) Cambodia’s Request Reveals a Dispute over the Delimitation of the Boundary ............184 C. Conclusion. ..................................192 CHAPTER V: CAMBODIA’S MISCONSTRUCTION OF THE MEANING AND SCOPE OF THE 1962 JUDGMENT .............193 A. The Apparent Purport of Cambodia’s Request .......193 B. Ignoring the Text of the 1962 Judgment, Cambodia Erroneously Asserts That the Court Determined That the Boundary Is to Be Traced on the Basis of the Annex I Map Line ........................195 1. Cambodia’s Request, in Contending That the Annex I Map Line Is the Basis on Which the Boundary Must Be Traced, Fails to Respect the Court’s Express Refusal in 1962 to Make Such a Determination .........................197 2. Cambodia’s Request Demands That the Court Today Treat as Res Judicata Other Matters in Relation to the Annex I Map Which the 1962 Judgment Did Not Address at All ................199 (a) Cambodia’s Assertion That the 1962 Judgment Determined the Boundary Not to Follow the Watershed ...................200 (b) Cambodia’s Request Ignores That the 1962 Judgment Did Not Address the Difference between the Parties as to Whether It Would Be Practical to Transpose the Annex I Map Line onto the Terrain ......................210 3. Cambodia Misconceives the Question of Sovereignty over the Temple as Having Necessitated a Determination of the Precise Location of the Boundary ......................213 vi (a) Cambodia, Insisting Now That the Original Proceedings Were for the Purposes of Constituting a Boundary, Ignores What the Court in 1962 Had Been Called upon to Determine .............................214 (b) Cambodia’s Portrayal of the Precise Location of the Boundary as Essential to the 1962 Judgment Is Unconvincing .................218 4. Cambodia Ignores the Subsequent Practice of the Parties Indicating That the Court Had Not Determined the Precise Location of the Boundary ...226 (a) The Memorandum of Understanding of 14 June 2000 ..........................227 (b) Third States Were Clear That the Boundary Issue Remained Unsettled by the 1962 Judgment ...............................230 5. Cambodia Attempts Now to Impute to the Annex I Map a Purpose for Which the Court in 1962 Declined to Employ It ..................231 C. Cambodia Confuses the General and Continuing Obligation of States to Respect One Another’s Territorial Integrity with the Specific Determination Reached by the Court in 1962 ....................233 D. Cambodia’s Allegation That Thailand Failed to Withdraw in accordance with the 1962 Judgment Is without Merit ...............................238 1. Cambodia Fails to Identify the Further Area from Which It Now Contends Thailand Failed to Withdraw .................................240 2. Cambodia Has Repeatedly Acknowledged That Thailand Withdrew in accordance with the 1962 Judgment ...................................246 (a) Cambodia’s Explicit Acknowledgement in the General Assembly of Thailand’s Compliance with the 1962 Judgment ..........246 (b) The Visit of the Other Prince ................247 vii (c) Cambodia’s Allegations in 1966 .............249 (d) Cambodia’s Subsequent Prolonged Silence .....252 (e) Recent Cambodian Practice .................253 E. Conclusion ...................................255 CHAPTER VI: THE PROBLEMS OF TRANSPOSING THE LINE ON THE ANNEX I MAP TO THE TERRAIN ....................257 A. Introduction ..................................257 B. Defects in the Annex I Map ......................259 1. Deviation of the Boundary Line from the Watershed ...............................259 2. The Gap between Lines at the Western End of the Annex I Map .............................261 3. Positional Errors .............................263 4. Topographical Errors ..........................265 5. Scaling Problems ............................266 6. Conclusions as to the Defects in the Annex I Map Line. 266 C. The Registration Error and the Revised Version of the Map ...................................268 D. Transformation of the Annex I Map Line to the Terrain ...................................273 E. Conclusion ...................................277 CHAPTER VII: CONCLUSIONS ...................281 SUBMISSIONS ...................................287 LIST OF ANNEXES ...............................291 viii CHAPTER I INTRODUCTION A. Procedural Matters 1.1 On 28 April 2011, the Kingdom of Cambodia filed with the Court, pursuant to Article 60 of the Statute of the Court and Article 98 of the Rules of Court, an application for the interpretation of the Judgment of the Court of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand)1 (in Thai “Phra Viharn”) and a request for provisional measures2. On the same date the Court informed the Kingdom of Thailand of the filing of the Request for interpretation (“Request”) and provided Thailand with originals of the documents filed by Cambodia.
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