An Analysis of the Case Concerning the Temple of Preah Vihar [Cambodia v. Thailand]

After the Permanent Court of Justice was dissolved in 1946, the International Court of Justice (ICJ) became the chief court for international dispute resolution. The ICJ, also known as the World Court, is the judicial wing of the United Nations. The jurisdiction of the court, however, is not compulsory as the basic principle of international law requires all sovereign states to be bound only by what they believe to be bound. To this extent, Article 36(2) of the ICJ statute allows any sovereign state to adopt the compulsory jurisdiction of the world court by making a declaration to that effect.

In the present case, the dispute between Thailand and Cambodia is primarily regarding the sovereignty exercised over a territory by both the countries. However, the case also raises an important issue regarding the jurisdiction of the ICJ, which is the main focus of this paper. In 1946, when the Permanent Court of Justice dissolved, an important question arose regarding the status of the declarations made by countries under Article 36 of the Statute of the Permanent Court of International Justice. The ICJ Statute addressed this question through Article 36(5) stating that the previous declarations would be deemed to have the effect of giving the ICJ compulsory jurisdiction over disputes between the declaring countries. The ICJ interpreted Article 36(5) in the case of Israel v. Bulgaria[1] to conclude that it did not have a blanket application on all states that had previously accepted the compulsory jurisdiction of the Permanent Court of Justice. Instead, the article would only apply to those states that had transformed their declarations through any act showing their intent to be bound by the ICJ. In other words, mere declarations regarding the compulsory jurisdiction of the Permanent Court of Justice ceased to exist if they were not intended by the states to be converted into new declarations to give it the effect of transformation. In Bulgaria’s case, the declaration of 1920 lapsed in 1946 for not having been transformed into an acceptance relative to the ICJ.[2]

The issue for consideration in the present case is thus, whether the ICJ had compulsory jurisdiction in light of the declaration given by Thailand on 20th May, 1950 and if it did, was it a result of renewal of declaration under Article 36(5) or as a new declaration under Article 36(2) of the ICJ Statue?

Thailand claim that the ICJ has no jurisdiction over the case, owing to the lack of declaration in that regard. Their primary contention is that the declaration of 1950 is just a renewal of the declaration made in 1929 which gives compulsory jurisdiction to the Permanent Court of Justice, thus making the latest declaration void ab initio. They further contend that they never accepted the compulsory jurisdiction of the ICJ under Article 36(2) of the ICJ Statue. As Cambodia had clearly given its declaration in 1957, the question of jurisdiction of the ICJ depends solely on the interpretation of the 1950 declaration made by Thailand.

In international law, the primary consideration is the intention of a sovereign state to be bound by something. The optional clause in Article 36(2) of the ICJ Statute gives room for every sovereign state to decide for itself whether to be bound by the compulsory jurisdiction of the ICJ or not. In this regard, the intention of Thailand was clear in 1929 and subsequent declarations that it wanted to be bound by the jurisdiction of the Permanent Court of Justice, for a prescribed term. When the court was dissolved in 1946, the declaration ceased to exist as Thailand decided not to take any action that could transfer the jurisdiction to the newly constituted ICJ. However, in 1950, another declaration was made in accordance with Article 36(4) of the ICJ Statute by Thailand with the intention to renew the declaration of 1929. This clarifies the position that Thailand was indeed aware of the formation of the ICJ and intended to be bound by a world court even after the Permanent Court of Justice had dissolved. This case is substantially different from the Bulgaria case in the respect that Bulgaria, after the formation of the ICJ took no action to transform the nature of their declaration in order to be bound by the new world court. Their declaration was with regard to the erstwhile Permanent Court, which ceased to exist once the court was dissolved in 1946. Therefore, in line with the reasoning given in the Bulgaria case, the declaration given in 1950 by Thailand is a clear conduct by its government to be bound by a world court, that was in existence at the time. The mere knowledge of the formation of the ICJ and the intention to be bound by a world court that was evident over the years provides sufficient evidence to bind Thailand by their declaration and invoke compulsory declaration of the ICJ.

It is settled that the ICJ has compulsory jurisdiction over the case. The next important consideration is regarding the nature of this jurisdiction. Article 36(2) requires the declaration to be deposited with the Security General of the United Nations. The Article does not state anything with regard to the language to be adopted while making the declaration. In fact, being an optional clause, it gives the declaring country, the freedom to bring in its own terms and conditions, provisions for amendments and term limits while making the said declaration. In accordance with the only necessary procedural requirement under Article 36(4), the government of Thailand recognised the ICJ Statue and deposited the declaration with the Security General of the United Nations. Although the language used in the declaration contemplates a possible renewal of an existing jurisdiction, in reality, the declaration of 1940 had lapsed in 1946 when no action was taken by Thailand to transform their declaration under Article 36(5) of the ICJ Statute, as was required according to the decision in the Bulgaria case. Accordingly, the declaration of 1950 fails to attract the provisions of Article 36(5) as in effect, it merely tries to renew a declaration that had been aborted and inoperative ever since the Permanent Court of Justice dissolved. Therefore, the declaration of 1950 may be treated as a new declaration under Article 36(2) of the ICJ Statute, disregarding the language adopted by Thailand.

The judgment with respect to the jurisdiction is rational in the fact that it gives primacy to the intention of Thailand to be bound by a world court, by judging its intent and conduct over the years. The best way to learn about the intention of a sovereign nation is to observe its conduct. As we know, the conduct of a state takes precedence over its opinion on a certain matter. The objective element always supersedes the subjective part as it provides concrete proof with respect to what a country wants to do. In the present case, Thailand, through its knowledge and conduct, clearly displayed an intent to be bound by the existing world court- which happened to be the ICJ, thereby invoking its compulsory jurisdiction in the case.

[1] [1959] ICJ Rep 127

[2] Supra at 1

This article is authored by Satvik Upadhya, student of B.A. LL.B (Hons.) at Jindal Global Law School

Also Read – International Court of Justice – Strong or Weak? (Reference with Kulbhushan Jadhav Case)

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