As part of Thailand’s pleading to the International Court of Justice (ICJ) in The Hague on 30 May 2011 pertaining to Cambodia’s request for indication of provisional measures pending the Court’s consideration on the interpretation of its judgment of 1962 in the case concerning the Temple of Phra Viharn, Professor Donald M. McRae, another of the Kingdom’s counsels, examined the question why the ICJ should not indicate provisional measures as requested.  He stressed three principal reasons.

Firstly, the measures Cambodia requests are not related to the subject matter of the dispute that Cambodia raises in its request for interpretation of the judgment.  Professor McRae pointed out that Thailand and Cambodia do not have any dispute about the judgment in the Temple case as alleged by Cambodia.  This is because Thailand has already complied fully with the said judgment.  Meanwhile, Cambodia’s request is also based on incidents occurring in localities far away from the Phra Viharn Temple, namely the Ta Kwai and Ta Muen Temples which are 147 and 158 kilometres away, respectively.  The provisional measures Cambodia has requested are also unbalanced as they are directed only at Thailand.

Secondly, Cambodia’s request does not meet the requirement of urgency.  Professor McRae, observing that Cambodia has asked the Court to indicate provisional measures to protect its rights in respect of the judgment made 50 years ago, said that Cambodia has failed to prove its claim that there is a real and imminent risk of irreparable prejudice to its rights.  Meanwhile, Thailand and Cambodia have instituted a bilateral process to resolve boundary issues, including in the area of the Temple of Phra Viharn, namely, the Memorandum of Understanding on Survey and Demarcation for Land Boundary of 2000.  Yet Cambodia has violated Article 5 of the said MOU, which called on both sides not to carry out any work resulting in changes of environment of the frontier zone, by building a pagoda, relocating people into the area, and constructing roads – the activities against which Thailand has protested.  Furthermore, in 2004, Cambodia moved to unilaterally inscribe the Temple of Phra Viharn on the World Heritage List without consulting Thailand, even though both sides had earlier discussed the possibility of a joint nomination.  This action was a clear indication that Cambodia was using the World Heritage inscription as a means to assert sovereignty beyond the Temple.

The evidence relied upon by Cambodia are all related to incidents that occurred outside the area concerning which the ICJ had ruled in 1962.   These incidents were also not very recent.  Cambodian therefore cannot claim there is a real and imminent risk which is a principal requirement for the Court to order provisional measures.

Thirdly, the measures requested are essentially an invitation to the Court to decide precisely what is at issue in the request for interpretation.  As established in the Court’s jurisprudence, the Court would not indicate provisional measures if such measures would prejudge the outcome of the matter in dispute.  Professor McRae noted that Cambodia’s request to the Court to order as a provisional measure the withdrawal of Thai troops from the vicinity of the Temple even though Thailand is not present there could only mean that Cambodia would like the Court to make a preliminary ruling on the merits of its claim that the Annex I map line constitutes the boundary between the two countries.  In this regard, were the Court to rule on measures as requested by Cambodia, it would be prejudging the outcome of the case, thereby running counter to its legitimate exercise of the power to award provisional measures, as has been maintained by the Court.

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30 May 2011