1cambodia v. thailand aproape finalab

8/2/2019 1Cambodia v. Thailand APROAPE fINALAB

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1. Briefly what was the Full title of case, year and citation

Case concerning The Temple of Preah Vihear(Cambodia v. Thailand), Preliminary

Objections, Judgment of 26 May 1961.

2. interpretation issue - ie what provision of what treaty? and quote it

The interpretation issue lato sensu was whether the Article 36 of the Statute of theCourt, and the Declaration of 20 May 1950 and 9 September 1957 by which Thailand,respectively Cambodia, recognized the jurisdiction of the ICJ, as well as the GeneralAct for the Pacific settlement of the International Disputes of 26 September 1928allowed the Court to assume jurisdiction.

In a narrower sense, the interpretation issue was whether Thailand declarations of 20May 1950 pursuant to the Article 36 of the Statute of the Court could be construed asproviding for compulsory jurisdiction of the Court, in combination with Cambodiasacceptance of the compulsory jurisdiction of the Court, pursuant to the Article 36-2 ofthe Statute of the Court.

The declaration made by Thailand on 20 May 1950 reads as follows:

"I have the honour to inform you that by a declaration dated September 20, 1929, HisMajesty' s Governmenthad accepted the compulsory jurisdiction of the Permanent Court of International

Justice in conformity withArticle 36, paragraph 2, of the Statute for a period of ten years and on condition ofreciprocity. That declaration has been renewed on May 3, 1940, for another period often years.

"In accordance with the provisions of Article 36, paragraph 4, of the Statute of ,the

International Court of Justice, I have now the honour to inform you hat His Majesty'sGovernment hereby renew the declaration above mentioned for a further period often years as from May 3, 1950, with the limits and subject to the same conditions andreservations as set forth in the first declaration of Sept. 20, 1929."

Article 36 of the Statute of the Court provides in its entirety as follows:

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters speciallyprovided for in the Charter of the United Nations or in treaties and conventions in force.2. The states parties to the present Statute may at any time declare that they recognize as compulsoryipso facto and without special agreement, in relation to any other state accepting the same obligation,the jurisdiction of the Court in all legal disputes concerning:

a. the interpretation of a treaty;b. any question of international law;c. the existence of any fact which, if established, would constitute a breach of an internationalobligation;d. the nature or extent of the reparation to be made for the breach of an international obligation.

3. The declarations referred to above may be made unconditionally or on condition of reciprocity on thepart of several or certain states, or for a certain time.4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shalltransmit copies thereof to the parties to the Statute and to the Registrar of the Court.


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5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice andwhich are still in force shall be deemed, as between the parties to the present Statute, to beacceptances of the compulsory jurisdiction of the International Court of Justice for the period which theystill have to run and in accordance with their terms.6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the

decision of the Court.1

Of particular importance in the case was the Article 36,paragraph 5, of the Statute of the Court,providing that::

"Declarations made under Article 36 of the Statute of thevPermanent Court of International Justice and which arestill in force shall be deemed, asbetween the parties to the present Statute, to be acceptances of the compulsory

jurisdiction of the International Court of Justice for the period which they still have to run and in

accordance with their terms."2

The proceedings in the case concerning the Temple of Preah Vihear(Preliminary

Objection) between Cambodia and Thailand, which related the territorial sovereignty

over the Temple of Preah Vihear, were instituted by an Application of Cambodia dated30 September 1959.3 Before entering the discussion of the merits of the case,4 the

Court had to decide if it had the jurisdiction claimed by Cambodia and contested by

Thailand.

Cambodia asserted the compulsory jurisdiction of the Court based on the Thaliands

1950 declaration and the Article 36. Subsidiary, Cambodia asserted the compulsory

jurisdiction of the Court on the alleged effect of certain treaty provisions of the

Franco-Siamese Treaty of Friendship, Commerce and Navigation of the 7th December,

1937, combined with the General Act for the Pacific settlement of the International

Disputes of 26 September 1928. In the language of the Court, since France, was said

to be acting on behalf of the former territory of French Indo-China, of which Cambodiawas then a component part; and Siam, as Thailand was then called. Cambodia

considers that she is entitled to claim the benefit of certain of these provisions,

namely provisions for the judicial settlement of any disputes of the kind involved in

the present case, including provisions for recourse to the International Court of

Justice.5

1 http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II2

Case concerning The Temple of Preah Vihear(Cambodia v. Thailand), Preliminary Objections,Judgment of 26 May 1961, at p. 253 In its application the Gov. of Cambodia asked the Court to adjudge and declare, whether theKingdom of Thailand appears or not:(1) that the Kingdom of Thailand is under an obligation towithdraw the detachments of armed forces it has stationed since 1954 in the ruins ofthe

Temple of Preah Vihear;(2) that the territorial sovereignty over the Temple of Preah Vihearbelongs to the Kingdom of Cambodia". Supra, FN 2, at p. p.204 Which would form the object matter of a subsequent Judgment of the ICJ___5 Case concerning The Temple of Preah Vihear(Cambodia v. Thailand), Preliminary Objections,

Judgment of 26 May 1961; p 22-23


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The Government of Thailand raised two preliminary objections to the jurisdiction of

the Court.6

First, Thailand raised a preliminary objection on the ground that that the declaration

it made on 20 May 1950 did not constitute a valid acceptance on her part of the

compulsory jurisdiction of the Court. While not denying that she fully intended toaccept the compulsory jurisdiction by that declaration, she argued that the terms in

which she drafted the declaration were ineffectual, accordingly to the decision of the

Court of 26 May 1959 in the case concerning the Aerial Incident of 27 July 1955 (Israel

v. Bulgaria)Second that even if Siam-France Treaty of Friendship, Commerce and

Navigation of the 7th December, 1937 provided for the compulsory jurisdiction of the

Court, Cambodia as such cannot make an independent claim to the benefit of these

provisions in a dispute between Thailand and herself, as she did not succeed to any

of the rights of France.7Second that neither Thailand nor Cambodia has ever been a

party to the General Act for the Pacific Settlement of International Disputes of the

26th September, 1928.8

3.What did the court suggest was its approach to interpretation in the case? Quote

what the court said it was doing (eg normal meaning etc)

The Court approached the interesting question of interpretation of the 1950s

Thailands declaration in the light of the Article 36-5 of the Statute of the Court by

expressly articulating the canon of interpretation underlying its own jurisprudence.

Accordingly, the Court assigned words the meaning which they naturally have in their

particular context in which they occur. In the Courts own language:

(t)he Court must apply its normal canons of interpretation, the first of which,

according to the established jurisprudence of the Court, is that words are to beinterpreted according to their natural and ordinary meaning in the context in which

they occur: if the 1950 Declaration is considered in this way, it can have no other

sense or meaning than as an acceptance of the compulsory jurisprudence of the

present Court, for there was no other Court to which it can have related.9

4.What was the result (very briefly)

By its Judgment of 26 May 1961, the Court rejected the first preliminary objection of

the Government of Thailand, and found that it had jurisdiction to adjudicate upon the

dispute submitted to it on 6 October 1959 by the Application of the Government of

Cambodia. It did not consider necessary to examine Thailands second preliminary

6 Case concerning TheTemple of Preah Vihear(Cambodia v. Thailand), Preliminary Objections,Judgment of 26 May 1961; Summary of Judgment, p.57.7 Pp. 22-238 Id. at p.229 Case concerning The Temple of Preah Vihear(Cambodia v. Thailand), Preliminary Objections,

Judgment of 26 May 1961; Summary of Judgment, p.32.


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objection to the compulsory jurisdiction of the court, as it considered Thailands 1950

declaration sufficient to allow for such jurisdiction.

By Order of the same date, the Court fixed the time-limits for the further pleadings.

The case became ready for hearing on the filing of the last pleading on 2 February

1962, and was adjudicated on the merits, the Court delivering a second Judgment, onthe merits, in this case.

5.Did the court took actually use the approach that it said it was doing? Ie identify

what approach he court said it was taking and then analyse what approach it actually

The Court was called to consider and decide whether it has competence or not to

determine to what State belongs the territorial sovereignty over the region

surrounding the Temple of Preah Vihear. However, as its compulsory jurisdiction to

adjudicate the case was contested by Thailand, it had in the present case to examine

if it had such jurisdiction. Having first decided that the second objections raised by

Thailand, that the French-Siamese treaty of 1937 should not be extended toCambodia, would be superfluous to consider, provided that it could be determined by

interpretation that Thailand accepted the compulsory Court jurisdiction by its 1950

declaration, it concentrated in the interpretation of this declaration. Therefore, after

determining that it had to deal solely with the validity of Thailands 1950 Declaration,

in the context of the Article 36-5 of the Statute and of the Israel v Bulgaria precedent,

the Court proceeded first with an interpretation of the Article 36-5 of the Statute of

the Court. On this purpose, it observed that the scope of the paragraph was to

provide a means by which the former declarations in acceptance of the compulsory

jurisdiction of the PCIJ would become ipso jure transformed into acceptances of

compulsory jurisdiction of the ICJ, in respect to the States parties to the Statute of the

Court.10 Further, the Court proceeded with its own interpretation of the decision itrendered in the Israel v. Bulgaria case.11 In this respect, it is observed that the

circumstances of the Israel vs Bulgaria case, 12 as well the question that the Court had

to respond in the respective case,13 were different than those applying in the present

case. For example, the Court noted that Bulgaria did not become a member of the

United Nations until 14 December 1955, date at which it also became a member of

the Statute of the Court. Since the PCIJ ceased to exist in April 1946, the Bulgarian

declaration of 1921 could not be considered to be ipso jure extended to the new

10 Id, at p. 25. A full inquiry into the object and the scope of Article 36-5, partially based on thetravaux preparatoires, is provided by Court in the Case concerning the Aerial Incident of July

27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, I959: I.C. J.Reports I959, p. 127, at pp.136-14111 Case concerning the Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), PreliminaryObjections, Judgment of May 26th, I959: I.C. J. Reports I959, p. 12712 In which the Court considered that it had not compulsory jurisdiction to adjudicate the 1955aerial incident in which the Bulgarian Anti aircraft defense forces destroyed a commercialIsraeli airline, because the 1921 Bulgarian Declaration to accept the compulsory jurisdiction ofthe PCIJ could not be considered as covered by Article 36-5 of the Court13 Case concerning The Temple of Preah Vihear(Cambodia v. Thailand), Preliminary Objections,at p. 28


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court, because Bulgaria was not a member of the UN at the moment, and more than 9

years lapsed between the demise of the former court and Bulgarias entry in the UN.14 Further, the Court also noted that (unlike Thailand), Bulgaria did not make any had

neither made any independent request that her 1921 Declaration should be

considered as relating to the present Court, nor taken any other step which could be

regarded as constituting an acceptance of the Court's compulsory jurisdiction.15

Third, and in addition to the above steps, the Court took another analytical distinction

in rapport to Thailands position vis a vis of that of Bulgaria in the Israel case when,

while observing the existence of an eight months period lapse between the demise of

the PCIJ and Thailands admission to the UN and to the Statute of the ICJ, it also noted

the Thailands 1940 renewal of its acceptance of the PCIJ compulsory jurisdiction for

ten years, which it was again renewed with explicit reference to the Article 36-5 if the

Statute and to the ICJ by the Declaration of 1950.16 Forth, the Court applied a sort of

per a contrario reasoning in relation to Thailands successive declaration. Thus, the

Court disjoined the previous declarations of Thailand related to its acceptance of the

compulsory jurisdiction of the PCIJ, and returned again to the requirements provided

by the Article 36 2-4 of the Statute, in order to see whether any special condition of

form is required for declarations of acceptance of compulsory jurisdiction of the ICJ.

And by interpreting the text of the respective article, it found that not special

requirements are required, with the exception of depositing such a declaration with

the Secretary General of the UN.17

Finally, by rejecting the view of Thailand that the decision in Israel v. Bulgaria case

had the consequences of invalidating Thailands 1950 Declaration, the Court

considered that it must interpret the Thailands 1950 Declaration on its own merits,

and without any preconception of an a priori18 kind, in order to determine what is its

real meaning and effect if that Declaration is read as a whole and in the light of itsknown purpose, which has never been in doubt. Thus, the Court approaches the

question of interpretation by applying, in the Courts words: its normal canons of

interpretation, the first of which, according to the established jurisprudence of the

Court, is that words are to be interpreted according to their natural and ordinary

meaning in the context in which they occur.19 Therefore the Court approaches the

Thailands 1950 Declaration, by the way of a textual interpretation, treating the terms

in their contextual meaning, and considering the text sufficiently clear as to

demonstrate the intention of the parties. The Court also adopts a teleological

interpretation of the 1950 Thailands Declaration, reading it in the light of its object

and purpose, as to find the Thailands intention to be part of the Statute of the Court,

position which in the view of the Court it has never been in doubt. TIt could be

14 Case concerning The Temple of Preah Vihear(Cambodia v. Thailand), Preliminary Objections,Judgment of 26 May 1961, at p. 2615 Id, at p. 2816 Id, at p. 2617 Id, qt pp.31-3218 Id, p. 32.19 Id, p. 32.


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considered that the Court is consistent with its own declaration by approaching the

texts submitted to its interpretation by a textualist method of interpretation, which

further seems to correspond to its interpretative method as it established, and with

its normal canon of interpretation and practice. In my view, given the length of the

introductory remarks related to the Israel case, and to the distinctive traits of

Thailands declaration in rapport to that of Bulgaria, a question might arise whetherthe Court did not make a normative judgment first, that it should give priority to the

clearly expressed intention of Thailand to be bound to the Courts compulsory

jurisdiction, while ignoring the form in which such declaration was made, and later

couched this judgment in a textualist interpretation cannon, in order to enhance the

legitimacy of its judgment. However, both the interpretation of the Article 36 of the

Statute of the Court, and of the 1950s Thailands declaration seem to be wholly

consistent with the normal cannons of interpretation of the Court, which consider the

text first, and then goes to other methods o even if it reached its conclusions first by

a normative judgment, it was able to fully support its views by ample recourse to its

normal cannons of interpretation.

6 . Identify how this case builds on your knowledge of the court's approach so far

, which aims both to solve the problems that appear in international relations

between States and to prevent disputes from arising.

One of the most controversial issues in the judicial settlement of disputesbefore the

This is a case when the Court expressly affirms principles of treaty interpretation,

presaging article 31 of the Vienna Convention. The Court followed the practice of thePCIJ adopting the textualist method of interpretation as it found the text of the

agreement sufficiently clear as to not rise unreasonable, absurd or self- contradictory

result. In doing so, and in support of the textual approach, the Court invokes its own

jurisprudence as relevant tool to strengthen the interpretation of the meaning of the

words in their particular context. Nevertheless, the Court states that words and

phrases must not always be interpreted in a purely literal way.20 And that this

principle did not apply where it would lead to something unreasonable or absurd.21In my view, the Court adopted more than a literal interpretation of the terms of the

provision. It resorts to a teleological interpretation of the 1950 Thailands Declaration,

as the Court felt to look at the document in a larger perspective, that of the object

and purpose for it was concluded, in order to confirm the result it already reached.

So the Court felt to inquire in depth the agreement to confirm the real intention of

Thailand as acceptant of the International Courts jurisdiction. The Court seems not

only to stop at extracting through an ordinary meaning and teleological approach of

interpretation the intention of Thailand in accepting the ICJ jurisdiction, but also to

20 Id, p.32. The Anglo-Iranian Oil Co. case, ICJ Report 1952, p.104.21 Id. The Postal Service in Danzing( P.C.I.J., Series B, No. II, p.39


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demonstrate its obvious intention showed by the terms of the provisions Declaration

as they are expressly provided. And that these terms leave no room of confusion for

Thailand as being part of the Statute of the Court, and therefore susceptible of

acceptance the compulsory jurisdiction of it: (i)f the 1950 Declaration is considered

in this way, it can have no other sense or meaning than as an acceptance of the

compulsory jurisprudence of the present Court, for there was no other Court to whichit can have related.22 Further, in the light of a textualist, and also a teleological

interpretation to confirm its result, in my view the Court successfully demonstrated

the intention of Thailand to accept the Courts jurisdiction, and that the Thailands

objection to it, could only be justified as its intention to avoid it: (i)f a literal

reading, part of Thailands Declaration had, ex postand because of the decision of

the Court in the Israel v. Bulgaria, to be considered as a purported acceptance of the

jurisdiction, of a defunct Court, this would be in clear contradiction to the reference in

another part of a Declaration to Article 36, paragraph 4, of the Statute(and via that

paragraph 2 and 3), which clearly evidenced acceptance of the jurisdiction of the

present Court, and in contradiction also with the fact that a communication under

paragraph 4 could only relate to the present Court.23It follows that the Court infers

from this that (t)he remainder of the Declaration must be construed in the light of

that cardinal fact, in the general context of the Declaration. 24

Given the fact that the interpretation of treaties is an important function of an

international court, in my view, the position of the Court in the present case was

strongly governed by its intention to underline the importance of the textual

approach as the basic principle in treaty interpretation and the importance of not

departure of it.( as a certain way of avoiding the vagueness in the policy of treaty

interpretation , Which otherwise would allow a party to eschew adjudication of the

Court even if signed a treaty providing for such jurisdiction). Also, by following thepractice of the PCIJ, the ICJ underlines the principles of international law, revealing an

already existing path in the policy of treaty interpretation, which aims both to solve

the problems that appear in international relations between States and to prevent

disputes from arising.

One of the most controversial issues in the judicial settlement of disputesbefore theInternational Court of Justice (ICJ) is the relationship between the scope of the

jurisdictionconferred on the Court and the law applicable to the dispute. When, inparticular,the Court possesses jurisdiction under a compromissory clause of a treaty, the

22 Case concerning The Temple of Preah Vihear(Cambodia v. Thailand), Preliminary Objections,Judgment of 26 May 1961; Summary of Judgment, p.32.23 Id., p.33.24 Id, p.34.


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issue arises, in dispute settlement on the interpretation and application of thattreaty,as to whether the treaty is the only law applicable. This question is easily

solved when

1cambodia v. thailand aproape finalab

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