Provisional Measures in ICJ-Temple of Preah Vihear Case

From ASIL ILIB and in continuance of my previous post on the matter:

Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (July 18, 2011)

Click here for document (approximately 21 pages); click here for summary (approximately 8 pages); click here for press release (approximately 4 pages)

The International Court of Justice (“ICJ”) has indicated provisional measures in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand). The Court ordered both parties to immediately withdraw their military forces stationed in the contested area, and both parties are to refrain from any military presence or activity within that area. Furthermore, the Court has ordered Thailand not to obstruct Cambodia’s access to the Temple of Preah Vihear, a historical site at the center of this dispute.

Cambodia filed an application with the ICJ against Thailand in April 2011, requesting the Court to interpret a previous ICJ judgment issued in June 1962, Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand). In the 1962 judgment, the Court concluded that “the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia.” While Thailand does not challenge Cambodia’s sovereignty over the Temple, it claims that Cambodia’s sovereignty does not extend to the surrounding area. Instead, Thailand claims sovereignty over the surrounding area. The parties’ dispute over the contested area has led to armed clashes between them and has triggered the involvement of regional organizations, including the Association of Southeast Asian Nations (“ASEAN”).

The Court first concluded that “a difference of opinion or views” existed between the parties regarding the “meaning or scope of the 1962 Judgment.” The existence of a dispute satisfied the requirement of Article 60 of the ICJ Statute–Article 60 states in relevant part: “In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party”–and provided the Court with jurisdiction to entertain the case and indicate provisional measures under Article 41.

The Court was careful to note that the indication of provisional measures is limited to situations of urgency, i.e., where “a real and imminent risk [exists] that irreparable prejudice may be caused to the rights in dispute.” To this end, the Court noted the violent clashes that have already occurred between the parties, resulting in “fatalities, injuries and the displacement of local inhabitants.” The Court also observed the involvement of the UN Security Council and ASEAN, both providing support for a peaceful settlement of the dispute.

The Court has still to rule on the merits of the case.

Thailand and Cambodia request for interpretation of the Temple of Preah Vihear Case at the ICJ

In the wake of the failure of the Cambodian and Thai governments to resolve their border dispute through diplomatic and other channels (United Nations, ASEAN) especially with regard to the 11th century Hindu Temple of Preah Vihear and the recent escalation in violent border clashes, Cambodia has filed a request before the ICJ for an interpretation the 1962 judgment of the ICJ in the Temple of Preah Vihear (Cambodia v. Thailand) (summary here). The press statement of the ICJ can be found here.

Cambodia has also requested urgent provisional measures to restrict Thailand from using any further violence and immediate withdrawal of the Thai forces. This request for interpretation and provisional measures comes after months of exchange of dialogue between the two countries. It is said that the new dispute, even though it had already been settled decades ago, has been fueled by nationalism and domestic politics.

Osama bin Laden and Pakistani Sovereignty

A recent ASIL Insight deals with certain burning critiques and the controversy surrounding the American unilateral action of killing Osama bin Laden on Pakistani soil. Many, such as former Pak President Musharraf, claim that keeping Pakistan in the dark about this action, by the US Navy SEALs, was a violation of Pakistani sovereignty.

Elaborating the “Unwilling or Unable” Test, the Insight states:

“If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely).  If the territorial state is both willing and able, the victim state’s use of force would be unlawful.”

This seems to be the justification that is attributed to the US action as being a legitimate act in accordance with international law of ‘self-defense’.

This test, in reality, can lead to many unilateral interventions that may be undesirable. First, it has to be restricted to only use against the international ‘Legal War against Terror’, that too after satisfying the proportionality test. If it is used in every situation, unrestrained use will only lead to chaos. Second, unilateral actions which may threaten to or actually violate international legal norms has opened a can of worms and any such actions in the future may lead to tense and sour diplomatic ties between nations where peace is generally hard to come by. For example, Israel & Palestine, Pakistan and India.

The USA has set a perilous precedent with Osama, much to the detriment of relations in the fragile international societal fabric.

Some other authors (here, here, here, here, and here) have received enthusiastic responses to their diverse opinions on the issue of the legality of the US Operation in Pakistan. The legality or illegality of the killing of Osama bin Laden has led to a variety of opinion on the webspace. See hereherehere (Foreign Policy), and here.

What about the documents and possible clinching information that was ostensibly scoured out of bin Laden’s hideout? Emerging reports at BBC and CNN suggest that al-Qaeda was planning more attacks on the United States territory to debilitate the transport and rail systems in major metropolises. The necessary argument follows from this newly discovered data is that the killing of Laden was ‘pre-emptive‘. The looming question remains: has this reduced the terror threats that many nations today face?

Meanwhile, the killing has drawn mixed responses from various Islamic states, many criticizing the American action. Many call Laden a martyr, a man who stood up for the Jihadi cause to eliminate radicalism from the world. Not shocking considering the usual anti-West sentiment that is apparent in those countries. This reaction which was expected, justifies why Laden’s body was buried in the sea.

It looks like Osama’s death has raised many questions rather than put an end to them.

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