Mr Pellet is an international law professor at Universite' Paris Ouest-Nanterre-La De'fense.(Isria) On 30 May 2011, at the oral hearing at the International Court of Justice (ICJ) in The Hague regarding Cambodia’s request for indication of provisional measures, Professor Alain Pellet, one of Thailand’s legal counsels on the case, presented his observations on the issue of the Court’s jurisdiction. Focusing on Cambodia’s request for interpretation of the 1962 judgment in the case concerning the Temple of Phra Viharn (Preah Vihear), Professor Pellet underscored four points on why the said request by Cambodia does not meet the requirements for the Court’s consideration on the question of its jurisdiction, namely that (1) the request must be related or linked to the judgment; (2) there must exist a genuine dispute; (3) interpretation of a judgment will not address its reasoning part unless this is inseparable from the operative part of the judgment; and (4) the request must not be used as a pretext to change what the Court has already decided in its judgment of 1962.
Firstly, on the link between the request for interpretation of the judgment and the judgment itself, Professor Pellet recalled that in 1962, the ICJ decided on three issues, namely that (1) the Temple of Phra Viharn is situated on the territory under the sovereignty of Cambodia; (2) Thailand is under the 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, and (3) Thailand is under the obligation to restore to Cambodia any objects which have been removed from the Temple or the Temple area by the Thai authorities. He stated that points (2) and (3) of the ICJ judgment constituted a specific and immediate obligation upon Thailand, and that these have been implemented in full. There is therefore no legal issue that requires interpretation by the Court. Cambodia’s request in this regard is therefore an attempt to change this specific and immediate obligation into a continuous one, even whilst Cambodia has all along accepted that Thailand had already complied with these two points of the judgment and never sent in troops into that area. Added to this is the fact that Cambodia’s request only came 50 years after the judgment was made. As a consequence, Cambodia’s request that Thailand be ordered to withdraw its troop does not constitute a request under Article 60 of the ICJ Statute. With regard to point (1) of the judgment, which is about the sovereignty over the Temple of Phra Viharn, Professor Pellet affirmed that Thailand has not contested Cambodia’s sovereignty over the Temple. There is thus no dispute on this for interpretation.
Secondly, on the question of dispute about the meaning of the operative part of the judgment, Professor Pellet observed that were there to be any differences of views between the two parties about points (2) and (3) of the judgment, the issue would be about the execution of the judgment and not interpretation. As for point (1) of the judgment, although Thailand felt that it was unfair, the country had accepted and implemented it in full without any different view on its meaning and scope. In this respect, given the non-existence of a dispute, Professor Pellet contends that the Court lacks jurisdiction to make interpretation. Consequently, without such jurisdiction, the Court would also have no jurisdiction on indication of provisional measures.
Thirdly, interpretation of a judgment will not address its reasoning part unless this is inseparable from the operative part of the judgment. However, through its request, Cambodia is attempting to change the issue of the 1962 judgment from one about sovereignty over the territory on which the Temple of Phra Viharn is situated to one about boundary, which is not right.
Finally, Professor Pellet said that the request for interpretation must not be used as a pretext to change what the Court has decided. Cambodia’s request for interpretation of the 1962 judgment serves only one purpose, that is, as can be inferred therefrom, to ask the Court to rule that the boundary line between Thailand and Cambodia be in accordance with the Annex I map, while also referring to incidents along the border in areas other than the Temple of Phra Viharn in order to ask to the Court to indicate provisional measures. This constitutes an attempt to have the Court rule on what it had rejected 50 years ago.
Professor Pellet explained that in 1962, the ICJ ruled that the Temple case was one about territorial sovereignty and limited the dispute only to this issue. The question of boundary was only used as reasoning as would be necessary for the judgment. The Court also concluded at the end of its judgment that it would use Cambodia’s request for the Court to consider the legal status of Annex I map and the boundary in the concerned area only as reasoning. Cambodia’s request this time around, therefore, appears to be an appeal to the Court to consider the issue that had been rejected in the main case and an excuse to change the Court’s judgment.
Firstly, on the link between the request for interpretation of the judgment and the judgment itself, Professor Pellet recalled that in 1962, the ICJ decided on three issues, namely that (1) the Temple of Phra Viharn is situated on the territory under the sovereignty of Cambodia; (2) Thailand is under the 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, and (3) Thailand is under the obligation to restore to Cambodia any objects which have been removed from the Temple or the Temple area by the Thai authorities. He stated that points (2) and (3) of the ICJ judgment constituted a specific and immediate obligation upon Thailand, and that these have been implemented in full. There is therefore no legal issue that requires interpretation by the Court. Cambodia’s request in this regard is therefore an attempt to change this specific and immediate obligation into a continuous one, even whilst Cambodia has all along accepted that Thailand had already complied with these two points of the judgment and never sent in troops into that area. Added to this is the fact that Cambodia’s request only came 50 years after the judgment was made. As a consequence, Cambodia’s request that Thailand be ordered to withdraw its troop does not constitute a request under Article 60 of the ICJ Statute. With regard to point (1) of the judgment, which is about the sovereignty over the Temple of Phra Viharn, Professor Pellet affirmed that Thailand has not contested Cambodia’s sovereignty over the Temple. There is thus no dispute on this for interpretation.
Secondly, on the question of dispute about the meaning of the operative part of the judgment, Professor Pellet observed that were there to be any differences of views between the two parties about points (2) and (3) of the judgment, the issue would be about the execution of the judgment and not interpretation. As for point (1) of the judgment, although Thailand felt that it was unfair, the country had accepted and implemented it in full without any different view on its meaning and scope. In this respect, given the non-existence of a dispute, Professor Pellet contends that the Court lacks jurisdiction to make interpretation. Consequently, without such jurisdiction, the Court would also have no jurisdiction on indication of provisional measures.
Thirdly, interpretation of a judgment will not address its reasoning part unless this is inseparable from the operative part of the judgment. However, through its request, Cambodia is attempting to change the issue of the 1962 judgment from one about sovereignty over the territory on which the Temple of Phra Viharn is situated to one about boundary, which is not right.
Finally, Professor Pellet said that the request for interpretation must not be used as a pretext to change what the Court has decided. Cambodia’s request for interpretation of the 1962 judgment serves only one purpose, that is, as can be inferred therefrom, to ask the Court to rule that the boundary line between Thailand and Cambodia be in accordance with the Annex I map, while also referring to incidents along the border in areas other than the Temple of Phra Viharn in order to ask to the Court to indicate provisional measures. This constitutes an attempt to have the Court rule on what it had rejected 50 years ago.
Professor Pellet explained that in 1962, the ICJ ruled that the Temple case was one about territorial sovereignty and limited the dispute only to this issue. The question of boundary was only used as reasoning as would be necessary for the judgment. The Court also concluded at the end of its judgment that it would use Cambodia’s request for the Court to consider the legal status of Annex I map and the boundary in the concerned area only as reasoning. Cambodia’s request this time around, therefore, appears to be an appeal to the Court to consider the issue that had been rejected in the main case and an excuse to change the Court’s judgment.
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