1. Briefly what was the Full title of case, year and citation Case concerning The Temple of Preah Vihear(Cambodia v. Thailand ), ), Prliminary Objections, Judgment of 26 May 1961. 2. interpretation issue - ie what provision of what treaty? and quote it The interpretation issue is: Article 36 of the Statute of the Court, and the Declaration of 20 May 1950 and 9 September 1957 by which Thailand and Cambodia respectively recognize the jurisdiction of the ICJ as well as the General Act for the Pacific settlement of the International Dispute of 26 September 1928. Proceedings in the case concerning t he Temple of Preah Vihear(Preliminary Obejection) between Cambodia and Thailand, which relates the territorial sovereignty over t he Temple of Preah Vihear, were instituted by an Application of Cambodia dated 30 September 1953. The Government of Thailand raised two preliminary objections to the jurisdiction of the Court.
1
On behalf of Gov. of Cambodia: "May it please the C ourt to adjudge and declare, whether the Kingdom of Thailand appears or not: (1) that the Kingdom of Thailand is under an obligation to withdraw t he detachments of armed forces it has stationed since 1954 in the ruins of the Temple Temple of Preah Vihear; (2) that the territorial sovereignty over the Temple of Preah Vihear belongs to the Kingdom of Cambodia"; In the Memorial, on the part of Cambodia: "May it please the Court to adj udge and declare, whether the Kingdom of Thailand appears or not: (1) that the Kingdom of Thailand is under an obligation to withdraw the detachments of armed forces it has stationed since 1954 in the ruins of the Temple of Preah Vihear; (2) that the territorial sovereignty over the Temple of Preah Vihear belongs to t he Kingdom of 2
Cambodia";
In the reply, Thailand: "May it please the Court: I.— I.—To reject the submissions presented by the Kingdom of Thailand in its Counter-Memorial, subject, in particular, to the presentation, if nece ssary, of any other grounds for the re jection of any further submissions that may be presented by the Kingdom of Thailand;
1
Case concerning The Temple of Preah Vihear(Cambodia v. Thailand ), ), Preliminary Objections, Judgment
of 26 May 1961; Summary of Judgment, p.57.
2
Id., p.20.
II.—To find in favour of the submissions contained in its Application instituting proceedings and in its Memorial. 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 question on interpretation by expressly articulating the canon of interpretation underlying its own jurisprudence. Accordingly, the Court assigns words the meaning which they naturally have in their particular context in which they occur. “…(t)he Court must apply its normal canons of interpretation, the first of which, according to the established jurisprudence of the Court, is that w ords are to be interpreted according to their natural and ordinary meaning in the context in which t hey 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 3
present Court, for there was no other Court to which it can have related.” 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 o n 6 October 1959 by the Application of the Government of Cambodia. 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. 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 over the territorial sovereignty of Thailand. Having determined that there is solely the validity of Thailand’s Declaration that is in issue in the present proceeding, the Court proceeds its own interpretation of the 1950 Declaration relating to the decision in the Israel v. Bulgaria case, as Thailand based the alleged effect on Thailand’s 1950 Declaration of the conclusion re ached by the Court in this case. By rejecting the view of Thailand that the decision in Israel v. Bulgaria case has the consequences concerning the effect of Thailand’s 1950 Declaration, the Court considers that “it must interpret the Thailand’s 1950 Declaration on its own 4
merits, and without any preconception of an a priori kind, in order to determine what is its real meaning and effect if that Declaration is r ead as a whole and in the light of its known purpose, which has never been in doubt.”Thus, the Court approaches the question of interpretation by applying “its normal canons of interpretation, the first of which, according to the established jurisprudence of the Co urt, is that words are to be interpreted according to their natural and ordinary meaning in the context in which
3
Case concerning The Temple of Preah Vihear(Cambodia v. Thailand ), Preliminary Objections, Judgment of 26 May 1961; Summary of Judgment, p.32. 4 Id, p. 32.
5
they occur.” The Court approaches a textual interpretation of the 1950 Declaration, treating the terms in their contextual meaning, considering the text sufficiently clear as to demonstrate the intention of t he parties. Also, the Court adopts a teleological interpretation of the 1950 Thailand’s Declaration, reading it in the light of its object and purpose, as to find t he Thailand’s intention to be part of the Statute of the Court, which in the view of the Court it has never been in doubt. Thus the Court is consistent with itself by approaching the textualist method of interpretation on its entire reasoning as it established, and with its normal canon of interpretation and practice. 6 . Identify how this case builds on your knowledge of t he court's approach so far 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 the PCIJ 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 C ourt 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 6
interpreted in a “purely literal way.” And that this principle ‘did not apply where it would lead to 7
“something unreasonable or absurd.” In 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 Thailand’s 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 Court’s 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 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 8
was no other Court to which it can have related.” Further, in the light of a textualist and also a teleological interpretation, I see that the Court successfully demonstrated the intention of Thailand to accept the Court’s jurisdiction, and that the Thailand’s objection to it, could only be j ustified as its intention to avoid it: “…(i)f a literal reading, part of Thailand’s Declaration had, ex post and 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 t he present Court, and in contradiction also with t he fact
5
Id, p. 32. Id, p.32. The Anglo-Iranian Oil Co. case, ICJ Report 1952, p.104. 7 Id. The Postal Service in Danzing ( P.C.I.J., Series B, No. II, p.39 8 Case concerning The Temple of Preah Vihear(Cambodia v. Thailand ), Preliminary Objections, Judgment of 26 May 1961; Summary of Judgment, p.32. 6
9
that a communication under paragraph 4 could only relate to the present Court.” It follows for the Court to infer from this that “(t)he r emainder of the Declaration must be construed in the light of that cardinal fact, in the general context of the Declaration.”
10
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 vaguesnes in the policy of treaty interpretation (Which would allow a party to eschew adjudication of the Court even if signed a tr eaty providing for such jurisdiction). Also, by following the practice of the PCIJ, the ICJ underlines the principles of international law, revealing an already existing path in t he 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 disputes before the International Court of Justice (ICJ) is the relationship between the scope of the jurisdiction conferred on the Court and the law applicable to the dispute. When, in particular, the Court possesses jurisdiction under a compromissory clause of a treaty, the issue arises, in dispute settlement on the interpretation and application of that treaty, as to whether the treaty is the only law applicable. This question is easily solved when
9
Id., p.33. Id, p.34.
10
