Preah Vihear: ICJ may let governments decide on boundary

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ICJ may let governments decide on boundary
Supalak Ganjanakhundee
The Nation



Compromise ruling one of 4 possible, legal experts say

BANGKOK: -- The International Court of Justice (ICJ) might save all parties from disaster when it delivers its judgement on the Preah Vihear case next week, as there is room for compromise - and for Thailand and Cambodia to peacefully make a deal.

There is a high possibility the ICJ will clarify the 1962 judgement on the border temple by explaining only legal aspects of the ruling. The court may say the boundary is inseparable from what the court ruled 50 years ago, according to legal experts at the Foreign Ministry.

The clarification may not seek to clearly clarify the 'vicinity' around Preah Vihear temple, but could be used as a framework for Thailand and Cambodia to negotiate the boundary line.

Thailand and Cambodia have set up a joint mechanism to consider the consequences of a court verdict legally and politically. Thai Foreign Minister Surapong Tovichakchaikul and his Cambodian counterpart Hor Namhong met last week in border towns Poi Pet-Aranyaprathet to make clear they would not allow the court ruling, whatever it is, to jeopardise good relations between the two countries.

Thailand and Cambodia already have a joint mechanism for boundary demarcation. It could use the ICJ verdict as a framework to negotiate and settle the boundary line.

If the ICJ does not rule in such a way, the Thai Foreign Ministry anticipates three other possible scenarios. The court could say it has no jurisdiction to interpret the 1962 judgement; it could rule in favour of Cambodia; or in favour of Thailand.

To decide in favour of Cambodia, the court would say that when it ruled in 1962 it saw a clear boundary line defined by the French map of 1:200,000 scale. That map enabled the court to rule that the Preah Vihear temple was situated on territory under the sovereignty of Cambodia.

If the court rules in that way, the vicinity of the temple where Thailand is obligated to withdraw troops and personnel from would be defined by the line on the map. The disputed area of 4.6 square kilometres would, thus, be under Cambodian sovereignty.

In this scenario, the current Thai government under Prime Minister Yingluck Shinawatra would face strong opposition from nationalist groups who alleged earlier that this government came to a deal with Cambodia, through the court, to make a territorial loss in exchange for personal interests for the Shinawatra clan. Anti-government sentiment is growing at present due to the amnesty bill - and the Preah Vihear ruling mount more pressure.

But the Preah Vihear case would not be a threat to the government if the court ruled in favour of Thailand. It would be a relief if the court said it had no jurisdiction to interpret the 1962 judgement, as both countries have no dispute on the old verdict.

For that reason, Thailand has complied with the 1962 judgement properly and Cambodia already accepted it 50 years ago. There is no further dispute. What Cambodia proposed to the court in 2011 was a new territorial dispute, on which the court cannot rule.

The vicinity of Preah Vihear temple is not necessarily defined by the international boundary line - and the Annex I map in Cambodia's proposal did not indicate the same area as determined in the 1962 judgement.

Ruling in favour of Thailand may create political difficulties for the Cambodian government, which is not as strong as before, as the opposition won more seats in the Parliament in the recent election.

Some judges might take note that experts indicated during previous oral testimony in April that the 1962 Thai cabinet resolution determined a 0.25 square kilometre area for the temple to sit on. The late King Norodom Sihanouk said the Thai-determined area was a few metres shorter than what Cambodia claimed.

The court could say that the area of 0.07 square km northeast of the temple is also included in the Preah Vihear vicinity.

If the court does so, Cambodia would get a bit more land, at least enough to tell the public that Phnom Penh "won" the case.


-- The Nation 2013-11-04

[hansgruber]

So it will never be resolved then.

[slapout]

Until the court makes public, its decision, it seems pointless to spend so much time in speculation. All of the ifs, mays, mights, and coulds is enough to confuse most of the people. This does seem to be a goal of the present government on most things so they are doing what they do best. blow smoke.

[upena]

Thailand dreaming the impossible dream. ICJ will award the 4.6 sq.km. to Cambodia.

[winstonc]

Thailand dreaming the impossible dream. ICJ will award the 4.6 sq.km. to Cambodia.

thats what i also think thats why their chatting like bestest mates so as not to lose a bit more face..and maybe the shinawatras have got a little pinky in the pie,somewhere

[David Mault]

My wife's house is in Sisaket Province near Khantharalak. She has just got off the phone after speaking to her older sister.(4:30pm Thai time) Looks like the women and children of our Village, Toongyai, have been told to evacuate. Looks like things might get a bit sticky on the border. I think our house is around 10 kilometers from the border as the crow flies. We had one or two rounds land near the village last time their was trouble on the border.

[SantiSuk]

The Nation makes it sound as though the ICJs answer is "so what answer do you guys want"?

[Bagwan]

I find this hysterically funny. The case is before the ICJ because the two countries can't agree. If the header is correct this looks like legal ping pong.

[Chao Lao Beach]

The ICJ is part of the UN right? In that case it wont have the balls to make a clear decision about anything.

[Lakegeneve]

The ICJ is part of the UN right? In that case it wont have the balls to make a clear decision about anything.

The ICJ was created by the UN Charter in the post WWII environment and it essentially the World's Court where member states can adjudicate on disputes. It also provides opinions on requested issues, such as the infamous Legality of Nuclear Weapons case.

The court has not enforcement mechanism as member states usually agree to abide by the court decisions. In rare cases where that does not happen decisions can be enforced by a subsequent UN Security Council Resolutions - though obviously the P5 can veto any UNSC Resolution.

Most border demarcation disputes are resolved either by joint commissions between states or by arbitration provide by international judicial bodies, especially in the case of maritime disputes. It is normal and nothing unique. Such processes can take time. For those border dispute cases which make it to the ICJ it is highly rare that a state does not abide by the decision. Even the hotly contested SE Asian pissy little uninhabited island disputes such as the Malaysia v Indonesia cases were implemented without any problem.

The UN is made of member states and thus it is up to member states what does or does not happen in the UN. Saying that the ICJ 'won't have the balls to make a clear decision" displays a patent ignorance regarding how international law works and how international demarcation disputes are resolved given that there are subject to the cooperation of member states.

As for this case, it is such a small area that could have easily have been demarcated long ago via the Joint Border Commission process which Thailand & Cambodia have had for over 10 years - much of the land border is still requiring demarcation under this process and the need for demining border areas slows the process. However, underlying this issue is not really about a border dispute.

This issue will also seem easy once both states get to the maritime section in the Gulf of Thailand. There are significant disputes awaiting resolution there given the untapped oil and gas reserves.

[coma]

I am glad the UN's ICJ looks like they are on top of this dispute. Start loading up the fuses and charge bags lads.