                     322

                                            SEPARATE OPINION
                                       OF JUDGE CANÇADO TRINDADE

                                                 table of contents

                                                                                Paragraphs

                          I. Introduction                                                      1-3
                      II. Essence of the Resurfaced Dispute before the Court                  4-12
                      III. A Couple of Terminological and Hermeneutic Precisions             13-18

                      IV. The Incidents (2007‑2011) Leading to Cambodia’s Request
                          for Provisional Measures of Protection and for Interpre-
                          tation of the 1962 Judgment                                        19-27

                          V. The Provisional Measures of Protection of the ICJ of 2011
                             28-33
                      VI. The Parties’ Submissions as to the Compliance with the
                          Order of the ICJ on Provisional Measures of Protection             34-37

                     VII. The States’ Duties to Refrain from the Threat or Use of
                          Force and to Reach a Peaceful Settlement of the Dispute
                          at Issue                                                           38-42
                     VIII. The Ineluctable Relationship between Motifs and Dis-
                           positif43-61

                            1. Overview of the case law of the Hague Court (PCIJ and
                               ICJ) on the matter                                            45-49
                            2. Reason and persuasion                                         50-51
                            3. The everlasting acknowledgment of the relevance of sound
                               legal reasoning                                               52-61
                      IX. Concluding Observations                                            62-67

                                                           *

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                                                   I. Introduction

                        1. I have concurred, with my vote, for the adoption by the Interna-
                     tional Court of Justice (ICJ), of the present Request for Interpretation of
                     the Judgment of 15 June 1962 in the Case concerning the Temple of
                     Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand) [herein
                     after Temple of Preah Vihear]. Although I stand in agreement with the
                     Court’s decision, not all the considerations that I regard as supporting it
                     are explicitly developed and stated in the present interpretation of judg-
                     ment. Given the great importance that I attach to them, I feel obliged to
                     leave on the records the foundations of my own personal position thereon.
                     I do so moved by a sense of duty in the exercise of the international judi-
                     cial function.
                        2. I shall first dwell upon the essence of the resurfaced dispute before
                     the Court, and then proceed to a couple of terminological and hermeneu-
                     tic precisions. Next, I shall briefly recall the incidents (2007‑2011) leading
                     to Cambodia’s concomitant requests for provisional measures of protec-
                     tion and for interpretation of the 1962 Judgment, and the parties’ submis-
                     sions as to the compliance with the Court’s Order on provisional measures
                     of protection. I shall do so on the basis of the Parties’ submissions to the
                     Court, in the course of the proceedings pertaining to the present interpre-
                     tation of judgment.

                        3. After recalling the fundamental principles of international law at
                     issue, I shall dwell upon the ineluctable relationship between motifs and
                     dispositif. To this effect, I shall : first, proceed to an overview of the rele-
                     vant case law of the Hague Court (PCIJ and ICJ) on the matter ; sec-
                     ondly, I shall refer to the presence of reason and persuasion in the exercise
                     of legal reasoning ; and, thirdly, I shall stress the acknowledgment,
                     throughout the centuries, of the relevance of sound legal reasoning, bear-
                     ing witness to the close relationship between motifs and dispositif. The
                     way will then be paved, last but not least, to the presentation of my con-
                     cluding observations.

                           II. Essence of the Resurfaced Dispute before the Court

                        4. To start with, may I point out that the Parties themselves, in their
                     submissions to the Court, addressed the essence of the resurfaced dispute
                     before the ICJ, in the course of the proceedings pertaining to the present
                     interpretation of judgment. Thus, in its oral arguments (of 15 April 2013)
                     before the Court, Cambodia stated, as to the factual context, projected in
                     time, of the dispute opposing it to Thailand, that :
                             “Between 1970 and 2007, it became dormant, first because of the
                          civil war in Cambodia, and then when Cambodians settled peacefully

                     46

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                     324 	 request for interpretation (sep. op. cançado trindade)

                              around the Temple and its vicinity without any protest from Thailand
                              except for occasional complaints about pollution. The dispute only
                              re‑emerged in 2007‑2008 as a result of Thailand’s objections to the
                              inscription of the Temple as a World Heritage Site [of UNESCO],
                              and the publication of Thailand’s new ‘secret’ map (. . .). That map
                              was protested by Cambodia after these incidents.” 1

                       5. In its Application instituting proceedings (of 28 April 2011), Cam-
                     bodia further contended that
                                 “Following the Paris Accords of 1991, the final ending of the con-
                              flict with the Khmer Rouge movement in 1998 and the consolidation
                              of an effective, democratic government in Cambodia able to conduct
                              normal and peaceful relations with its neighbours and beyond, steps
                              were taken to initiate a bilateral process between Cambodia and Thai-
                              land which, had it functioned in the way that Cambodia hoped, would
                              have led to a stable situation being established, whereby the imple-
                              mentation of the Court’s 1962 Judgment would have been entirely
                              possible. The principal means of achieving that was the process of
                              demarcating the boundary between the two States (. . .). Had that
                              process been successfully completed, as Cambodia wished, it would
                              have removed ipso facto the possibility of a dispute such as that con-
                              cerning interpretation of the territorial régime in the particular area
                              where the Temple of Preah Vihear is situated. It was only following
                              Thailand’s opposition to the process of including the Temple on
                              UNESCO’s list of World Heritage sites in 2008 that it became clear
                              to Cambodia that the demarcation process had no realistic chance of
                              being completed without a clear and authorized interpretation from
                              the Court as to the meaning and scope of the 1962 Judgment. Cam-
                              bodia does not believe that the Court can look unfavourably on the
                              fact that Cambodia explored every bilateral possibility before reach-
                              ing the conclusion that a fundamentally different interpretation
                              existed between itself and its neighbour as to the meaning and scope
                              of the 1962 Judgment, which could only be settled by means of this
                              request for interpretation.” 2

                       6. Both in its Application 3, as well as in its Response (of 8 March
                     2012) 4, Cambodia insisted on the point that only from 2007 (with
                     the
                         initiative to have the Temple of Preah Vihear declared a World

                          1
                          Compte rendu (CR) 2013/1, of 15 April 2013, p. 74, para. 86.
                          2
                          Application instituting proceedings, filed by Cambodia on 28 April 2011, p. 25,
                     para. 30.
                        3 Ibid., paras. 12, 15 and 17.
                        4 Response of Cambodia, paras. 2.9, 2.23, 2.90‑2.91, 2.104 and 4.60.

                     47

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                      eritage site by UNESCO) and from 2008 (with the inclusion of the
                     H
                     Temple in the World Heritage sites) onwards, the present dispute resur-
                     faced ; the Parties themselves reckoned that they differed in terms of
                     their understanding of the Court’s Judgment of 1962. For its part, Thai-
                     land, in its written observations of 21 November 2011 5, observed that
                     the Court’s Judgment of 1962, in deciding the question of sovereignty
                     over the Temple of Preah Vihear, which it accepted, created a situation
                     to be taken into account for the process of delimitation and demarca-
                     tion of its common border with Cambodia, of the area surrounding the
                     Temple.
                         7. Thailand further pointed out that in 2004 a joint Thai‑Cambodian
                      Council of Ministers had met in Bangkok to consider submitting a “joint
                      nomination” to include the Temple on the UNESCO World Heritage
                      List, but, “later that year, without informing Thailand, Cambodia made
                      a unilateral request to UNESCO to list the Temple as a World Heritage
                      Site” 6. In its further written explanations (of 21 June 2012), Thailand
                      added that Cambodia thereby hoped “to extend the meaning of the word
                      ‘vicinity’”, found in the dispositif (para. 2) of the Court’s Judgment
                      of 1962, so as to put the Temple on UNESCO’s World Heritage List and
                      “to get around the indispensable co-operation of Thailand” 7.

                        8. Both Cambodia and Thailand retook their arguments in the oral
                     phase (April 2013) of the proceedings before the Court. Cambodia con-
                     tended that the registration of the Temple as a UNESCO World Heritage
                     site was the starting‑point for the “acts of armed aggression carried out
                     by Thailand”, against “a poorly armed Cambodia” 8. Thailand, for its
                     part, argued that Cambodia’s “unilateral request for inscription of the
                     Temple on the UNESCO World Heritage List in 2007 once again poi-
                     soned the situation” 9.
                        9. Besides the ICJ, the dispute at issue was also taken to the attention
                     of the UN Security Council. It clearly flows from the arguments of the
                     contending Parties in their letters of July 2008 to the President of the
                     Security Council (Mr. Le Luong Minh) that their differences were
                     expressed shortly after the inclusion of the Temple of Preah Vihear —
                     upon the initiative of Cambodia — on the list of UNESCO World
                     Heritage Sites. Thus, in its letter of 19 July 2008 to the President of the
                      Security Council, the Permanent Mission of Cambodia to the United
                      Nations complained of the “Thai military provocation” in seeking to

                          5
                          Written observations of Thailand, paras. 4.69, 4.75, 4.110 and 7.1.
                          6
                          Ibid., para. 1.21.
                        7 Further written explanations of Thailand, para. 5.5.
                        8 CR 2013/1, of 15 April 2013, pp. 17‑18, paras. 7‑8. Cambodia further argued that

                     Thailand had “never truly accepted the solution in the 1962 Judgment” of the Court (ibid.,
                     p. 18, para. 9).
                        9 CR 2013/3, of 17 April 2013, p. 63, para. 26.

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                     create a de facto “overlapping area” which “legally does not exist on
                      Cambodia soil”, in breach of Cambodia’s “sovereignty and territorial
                      integrity” 10.
                          10. Thailand, for its part, in the letter of its Permanent Mission to the
                       United Nations of 21 July 2008 to the President of the Security Council,
                       after stating that the 1962 ruling of the ICJ “did not in any case deter-
                      mine the location of the boundary between Thailand and Cambodia”,
                      argued that “the issue before the ICJ in this case was limited solely to the
                      question of the sovereignty over the region of the Temple of Preah Vihear”
                      and that “the location of the boundary line in the area adjacent to the
                      Temple of Preah Vihear is still to be determined by both countries in
                      accordance with international law” 11.
                          11. It ensues, from the position of the two contending Parties (cf. also
                      infra), that the present case of the Temple of Preah Vihear is not a case
                      of delimitation, nor of demarcation, of frontier, but rather a case of
                      territorial sovereignty. The ICJ Judgment of 15 June 1962 speaks indis-
                      tinctly of “sovereignty over the region of the Temple of Preah Vihear” 12,
                      of “sovereignty over the Temple area” 13, or else of “sovereignty over the
                       Temple” 14 itself. The 1962 Judgment reiterates the interchangeable use
                       of the terms “disputed region”, “sovereignty over Preah Vihear”, and
                       “the Temple or Temple area” 15. One cannot avoid the impression that a
                       couple of terminological and hermeneutic precisions are called for
                       (cf. infra).
                          12. Before turning to that, may I just add that, in my perception, this
                       is a case of territorial sovereignty to be exercised to secure the safety of
                       local populations under the respective jurisdictions of the two contending
                       States, in the light of basic principles of international law, such as those
                       of peaceful settlement of international disputes and of the prohibition of
                       the threat or use of force (cf. Section VII, infra) ; it is, furthermore, a case
                       of territorial sovereignty to be exercised by the State concerned, in co-
                       operation with the other State concerned, as parties to the World Heri-
                      tage Convention, for the preservation of the Temple at issue as part of the
                      world heritage (reckoned as such in the UNESCO List) and to the (cul-
                      tural) benefit of humankind.

                          10   Application instituting proceedings, Annex 2, pp. 42, 44.
                          11   Ibid., Annex 4, p. 86. Thailand added that
                               “the inscription of the Temple of Preah Vihear on the World Heritage List shall in
                               no way prejudice Thailand’s rights regarding her territorial integrity and sovereignty
                               as well as the survey and demarcation of land boundary in the area and Thailand’s
                               legal position” (ibid., p. 88).
                        12 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports

                     1962, p. 14 (last paragraph).
                        13 Ibid., p. 17 (first paragraph), and cf. p. 29 (first paragraph).
                        14 Ibid., p. 21 (second paragraph).
                        15 Ibid., p. 36 (three paragraphs).

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                                                III. A Couple of Terminological
                                                   and Hermeneutic Precisions

                        13. At this stage, may I briefly dwell upon a couple of terminological
                     and hermeneutic precisions, to clarify further the essence of this resur-
                     faced dispute before the Court, which appears to defy the passing of time.
                     In the dispositif of its Judgment of 15 June 1962 the Court found that
                     “the Temple of Preah Vihear is situated in territory under the sovereignty
                     of Cambodia” (para. 1) ; it further found, in consequence, that “Thailand
                     is under an obligation to withdraw any military or police forces, or other
                     guards or keepers, stationed by her at the Temple, or in its vicinity on
                     Cambodian territory” (para. 2) 16.

                        14. The first resolutory point of the dispositif leaves it clear that the
                     dispute before it concerns territorial sovereignty, rather than delimitation
                     or demarcation of frontier. As to the second resolutory point of the dis‑
                     positif, one might have hoped that it would not have been somewhat
                     vague, as it appears in the use of the term “vicinity”, in indicating where-
                     from Thai troops had to withdraw. Yet, this may have been done on
                     purpose by the Court half a century ago.
                        15. The Court may well have decided to use a term not too narrowly
                     circumscribed. Had the Court held the obligation to withdraw military
                     troops or police forces precisely only as to the ground where the Temple,
                     or its “ruins”, stood, this could have led to a stricter interpretation that
                     Thai troops could still be stationed right outside, or around, the walls of
                     the Temple. This would have been impracticable, in hindering the access
                     to the Temple of Cambodian non‑military personnel. Thus, in my percep-
                     tion, while in its 1962 Judgment the Court did not precisely define the
                     scope of the “vicinity” of the Temple, it seems important that the term
                     “vicinity” be understood to comprise what is essential to guarantee the
                     free access in and out of the Temple itself, the freedom of movement in
                     and out of the Temple of non‑military Cambodian personnel.

                       16. Furthermore, it seems likewise relevant that the term “vicinity”,
                     used in the second resolutory point of the dispositif, be understood also to
                     describe the scope of the obligation to withdraw troops or police force in
                     pursuance, on the part of both parties, of the fundamental principle of
                     the prohibition of the threat or use of force, in the Temple itself, or in its
                     “vicinity”. It is somewhat ironical that it was the inscription by UNESCO
                     of the Temple of Preah Vihear in the World Heritage List that led to the
                     conflicts provoking the resurfacing of the present dispute before the ICJ,
                     centred on the term “vicinity” as well as the obligation of “withdrawal”
                     of military or police forces.

                          16   I.C.J. Reports 1962, pp. 36‑37.

                     50

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                        17. The etymological origins of the verb “to withdraw/se retirer” go
                     back to the late twelfth and the thirteenth centuries (from the Latin retra‑
                     here, to retract/se retirer). From then onwards, the verb is recorded to
                     have been used in the sense of “to remove oneself from”, or “to draw
                     oneself away from”, a place or a position 17; the verb came to be used in
                     respect of distinct situations, among which that of territorial sover-
                     eignty — not delimitation or demarcation of territory — as in the present
                     resurfaced dispute before the Court, opposing Cambodia to Thailand.
                     This is corroborated by the dispositif of the 1962 Judgment of the ICJ in
                     the case of the Temple of Preah Vihear (supra).
                        18. In the present interpretation of judgment, the ICJ has rightly pon-
                     dered that
                          “[o]nce a dispute regarding territorial sovereignty has been resolved
                          and uncertainty removed, each party must fulfil in good faith the
                          obligation which all States have to respect the territorial integrity of
                          all other States. Likewise, the Parties have a duty to settle any dispute
                          between them by peaceful means” (Judgment, para. 105).

                     In this connection, the Court has taken note that Thailand has commend-
                     ably accepted that it has a continuing obligation to respect the integrity of
                     Cambodian territory (ibid., paras. 51 and 105), including that of the
                     promontory of Preah Vihear.

                                      IV. The Incidents (2007‑2011) Leading
                                 to Cambodia’s Requests for Provisional Measures
                                      of Protection and for Interpretation
                                              of the 1962 Judgment

                        19. A series of incidents, which took place in the period of 2007‑2011
                     and prompted Cambodia’s Requests for provisional measures of protec-
                     tion and for interpretation of the 1962 Judgment of the ICJ, are reported
                     in its Application instituting proceedings, of 28 April 2011. On 17 May
                     2007 the Thai Prime Minister protested at Cambodia’s zoning plan (issued
                     on 10 November 2006) as part of its proposal to declare the Temple a

                        17 Cf. Dictionnaire historique de la langue française (ed. Alain Rey), 3rd ed. Paris,

                     Dictionnaires Le Robert, 2000, p. 1921 ; The Oxford English Dictionary (eds. J. A. Simpson
                     and E. S. C. Weiner), 2nd ed., Vol. XX, Oxford, Clarendon Press, 1989, p. 450 ; Barnhart
                     Dictionary of Etymology (eds. R. K. Barnhart and S. Steinmetz), N.Y., H. W. Wilson Co.,
                     1988, p. 1241 ; Dictionnaire étymologique et historique du français (eds. J. Dubois, H. Mitte-
                     rand and A. Dauzat), Paris, Larousse, 2007, p. 717 ; The New Shorter Oxford English
                     Dictionary on Historical Principles (ed. L. Brown), Vol. 2, Oxford, Clarendon Press, 1993,
                     p. 3704 ; Legal Thesaurus (ed. W. C. Burton), N.Y./London, Macmillan Publs., 1980,
                     p. 514 ; Vocabulaire juridique (ed. G. Cornu), 8th ed., Paris, Association Henri Capitant/
                     PUF, 2007, pp. 827‑828 ; Black’s Law Dictionary (ed. B. A. Garner), 9th ed., St. Paul/Mn.,
                     West/Thomson Reuters, 2009, p. 1739.

                     51

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                      UNESCO World Heritage site. With the opening of discussions within
                      UNESCO to have the Temple declared a World Heritage site, there fol-
                      lowed a deterioration in relations between the two States concerned. As
                      from 15 July 2008, “large numbers of Thai soldiers crossed the border
                      and occupied an area of Cambodian territory near the Temple, on the site
                      of the Keo Sikha Kiri Svara Pagoda” 18.
                         20. Thailand, likewise, in its written observations of 21 November
                      2011, acknowledged the occurrence of those incidents as from 2007 19.
                      Thailand contended that there was no evidence of non‑compliance on its
                      part of the Court’s Judgment of 1962. In its perception,“[T]he border
                      incidents that have occurred over recent years result from Cambodia
                      seeking to assert authority over an area much greater than they have been
                      content with in the past” 20.
                         21. The controversy over territorial sovereignty had indeed reemerged,
                      and [this time] reached the UN Security Council on 21 July 2008 21. In his
                      letter of that date to the President of the UN Security Council
                      (Mr. Le Luong Minh), the Permanent Representative of Thailand to the
                      United Nations stated that the issue that had originally been brought
                      before the ICJ for its Judgment of 1962 had been “limited solely to the
                      question of the sovereignty over the region of the Temple of Preah Vihear”,
                      and not the determination of the boundary line in the “area adjacent to
                      the Temple” ; this latter still remained “to be determined by both coun-
                      tries in accordance with international law” 22.

                         22. Three months later, the President of the Security Council was
                      informed by Cambodia’s representative at the United Nations that “Thai
                      troops [had] once again crossed the frontier at three locations”
                      (Keo Sikha Kiri Svara Pagoda, Veal Intry and the hill of Phnom Trap,
                      “inside Cambodian territory”), and had “opened fire on Cambodian sol-
                      diers”, causing the death of two of them and injuries in two others (inci-
                      dent of 15 October 2008) 23. Another armed incident of the kind occurred
                      on 3 April 2009 (in Phnom Trap, Tasem and Veal Intry), in “the immedi-
                      ate vicinity of the Temple”, causing damage in “the area around the Tem-
                      ple”, including the stairway leading to it 24.

                        23. In the following year, the UN Secretary‑General (Mr. Ban Ki‑moon)
                      offered (on 20 August 2010) his help to resolve the dispute between Cam-

                           18Application instituting proceedings, pp. 13 and 15, paras. 13‑16.
                           19Thailand referred to facts going back to 2004‑2005 ; cf. written observations of
                      Thailand, pp. 13‑14, paras. 1.26‑1.27.
                         20 Ibid., p. 15, para. 1.30.
                         21 Application instituting proceedings, p. 21, para. 25.
                         22 Ibid., Annex 4, p. 86, para. 4.1.
                         23 Ibid., p. 27, para. 33.
                         24 Ibid., para. 34.

                      52

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                      bodia and Thailand 25, but unfortunately, from 4 to 7 February 2011,
                      Thai troops, using “heavy artillery and fragmentation shells”, caused
                      “many casualties among the Cambodian armed forces and civilians”, as
                      well as “material damage to the Temple itself”, leading to the Security
                      Council’s urging of a “permanent ceasefire” on 14 February 2011 ; the
                      applicant State draws particular attention to the Security Council’s state-
                      ment of that date 26. That UN Press Release was issued by the President
                      of the Security Council (Mrs. Maria Luiza Ribeiro Viotti) on 14 Febru-
                      ary 2011, containing the following statement on the Cambodia/Thailand
                      border situation :
                             “The members of the Security Council were briefed by Under‑
                           Secretary‑General B. Lynn Pascoe and by the Minister for Foreign
                           Affairs of Indonesia, and Chair of the Association of South-East
                           Asian Nations (ASEAN), Marty Natalegawa, on the situation on the
                           border between Cambodia and Thailand.
                             The members of the Security Council also heard from the Deputy
                           Prime Minister and Minister for Foreign Affairs of Cambodia,
                           Hor Namhong, and Minister for Foreign Affairs of Thailand,
                           Kasit Piromya.
                             The members of the Security Council expressed their grave concern
                           about the recent armed clashes between Cambodia and Thailand.
                             The members of the Security Council called on the two sides to
                           display maximum restraint and avoid any action that may aggravate
                           the situation. The members of the Security Council further urged the
                           parties to establish a permanent ceasefire, and to implement it fully
                           and resolve the situation peacefully and through effective dialogue.

                             The members of the Security Council expressed support for ASEAN’s
                           active efforts in this matter and encouraged the parties to continue
                           to co‑operate with the organization in this regard. They welcomed
                           the upcoming Meeting of Ministers for Foreign Affairs of ASEAN
                           on 22 February.” 27
                         24. In its Application instituting proceedings, Cambodia referred to
                      the incidents of early February 2011 as “a serious threat to peace and
                      security in the region”, as again stressed by the UN Secretary‑General
                      (Mr. Ban Ki‑moon) 28. The concern of UNESCO, for its part, expressed
                      in the Report of 26 May 2009 of the UNESCO World Heritage Commit-
                      tee, was with strengthening “the protection and management of the World
                      Heritage property” (cf. Annex 12). As further reported by Cambodia in
                      its Application :

                          25 Application instituting proceedings, cf. Annex 8, UN Press Release of 20 August

                      2010, p. 151.
                          26 Ibid., p. 27, para. 34.
                          27 Ibid., Annex 9, UN Press Release of 14 February 2011, p. 152. [English official trans-

                      lation.]
                          28 Ibid., p. 29, para. 34.

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                      331 	 request for interpretation (sep. op. cançado trindade)

                                   “In these various incidents between 2008 and 2011, architectural
                                features of the Temple have been damaged, leading to inquiries and
                                reports by the UNESCO authorities, which have recommended the
                                convening of an international co‑ordinating committee, as envisaged
                                in the decision to list the site. (. . .) Following the serious incidents in
                                early February 2011, the Director‑General of UNESCO,
                                Mrs. Irina Bokova, decided to send a mission to the site, together with
                                a special envoy in the person of the former UNESCO Director‑
                                General, Mr. Koïchiro Matsuura.” 29
                      UNESCO’s initiative, among others 30, purported to assess in loco the
                      state of the Temple of Preah Vihear.
                         25. Another UN press release, of 23 April 2011, expressed the grave
                      concern of the UN Secretary‑General (Mr. Ban Ki‑moon) with the new
                      clashes between Cambodia and Thailand along their “common border” :

                                   “United Nations Secretary-General Ban Ki‑moon is troubled by
                                reports of renewed fighting in the past two days between Cambodian
                                and Thai troops along the two countries’ common border, which has
                                reportedly claimed numerous lives from both sides, said his spokes-
                                person on Saturday.
                                   ‘He had been encouraged by the initial signs of progress in regional
                                efforts to strengthen bilateral mechanisms for dealing with the dispute
                                between the two neighbours’, the spokesperson added. ‘The Secretary-
                                General calls on both sides to exercise maximum restraint and to take
                                immediate measures to put in place an effective and verifiable cease-
                                fire.’
                                   Mr. Ban ‘also believes the dispute cannot be resolved by military
                                means and urges Cambodia and Thailand to engage in serious dialogue
                                to find a lasting solution’.
                                   According to reports, six people died on Friday as a result of fight-
                                ing along the border between Thailand and Cambodia, despite the
                                ceasefire negotiated in February. Three Thai and three Cambodian
                                soldiers lost their lives in these clashes and a further 19 — 13 Thais
                                and six Cambodians — were injured.
                                   Thailand and Cambodia hold each other responsible for the
                                gunfire, which took place close to the Temples of Ta Moan and
                                 Ta Krabei, some 150 km south‑west of the Temple of Preah Vihear,
                                 where armed clashes claimed 11 lives two months ago, between 4 and
                                 7 February.” 31

                           29
                            Application instituting proceedings, para. 35 ; and cf. ibid., Annex 12, pp. 161‑173.
                           30
                            E.g., the European Parliament, likewise, adopted a resolution, on 17 February 2011,
                      on the border clashes between Thailand and Cambodia (cf. ibid., Annex 13, pp. 175‑179).
                          31 UN Press Release of 23 April 2011, reproduced in ibid., Annex 11, p. 159. [English

                      official translation.]

                      54

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                      332 	 request for interpretation (sep. op. cançado trindade)

                         26. The situation brought to the knowledge of the Court on 28 April
                      2011 (for interpretation of its 1962 Judgment) was thus clearly that of a
                      dispute, in my perception concerning mainly the withdrawal of forces
                      from the Temple or its vicinity, in the light of general principles of inter-
                      national law, such as those of the prohibition of the threat or use of force,
                      and of peaceful settlement of international disputes. The Cambodian
                      Request for interpretation is ineluctably intermingled with the Cambo-
                      dian Request for provisional measures, both having been prompted by
                      the events which have occurred (as from 2007, and culminating in
                      early 2011) in the Temple area and its vicinity.

                        27. Those incidents are to be much regretted. As I pondered in my
                      separate opinion, in the Court’s Order (of 18 July 2011) of provisional
                      measures of protection in the cas d’espèce,
                              “In the present case of the Temple of Preah Vihear before the ICJ,
                           it is indeed a pity that a temple that was built with inspiration in the
                           first half of the eleventh century, to assist in fulfilling the religious
                           needs of human beings, and which is nowadays — since the end of
                           the first decade of the twenty-first century — regarded as integrating
                           the world heritage of humankind, becomes now part of the bone of
                           contention between the two bordering States concerned. This seems
                           to display the worrisome frailty of the human condition, anywhere in
                           the world, in that individuals appear prepared to fight each other and
                           to kill each other in order to possess or control what was erected in
                           times past to help human beings to understand their lives and their
                           world, and to relate themselves to the cosmos.” (Request for Interpre‑
                           tation of the Judgment of 15 June 1962 in the Case concerning the
                           Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai‑
                           land), Provisional Measures, Order of 18 July 2011, I.C.J. Reports
                           2011 (II), pp. 603‑604, para. 108.)

                                    V. The Provisional Measures of Protection
                                                of the ICJ of 2011

                         28. As a consequence of the eruption of armed hostilities between
                      Thailand and Cambodia (supra), the ICJ convened public sittings on
                      30 and 31 May 2011, and shortly afterwards issued its Order of provi-
                      sional measures of protection, on 18 July 2011. In the present interpreta-
                      tion of judgment that the Court has just issued, it expressly refers
                      (Judgment, para. 35) to its Order of provisional measures of 18 July 2011,
                      related as it is to Cambodia’s Request for interpretation of the 1962 Judg-
                      ment, even though delivered without prejudice to the ICJ’s present inter-
                      pretation of judgment. The two Requests were lodged together with the
                      Court by the applicant State. In the present interpretation of judgment,
                      the ICJ has taken note of its Order of provisional measures (ibid.,

                      55

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                      paras. 29 and 35‑36), in order to address the Request for interpretation ;
                      it has thus made it clear that the two concomitant Requests cannot make
                      abstraction of each other.
                         29. In its Order of provisional measures of 18 July 2011, the Court
                      determined, as from the basic principle of the prohibition of the threat or
                      use of force, enshrined into the UN Charter, the creation of a “provi-
                      sional demilitarized zone” around the Temple of Preah Vihear and in the
                      proximities of the frontier between the two countries, and the immediate
                      withdrawal of their military personnel, and the guarantee of free access to
                      the Temple of those in charge of supplies to the non‑military personnel
                      present therein. It further determined the retaking and pursuance of
                      negotiations between them, aiming at the peaceful settlement of the dis-
                      pute, so as not to allow its aggravation.
                         30. In my separate opinion, I endorsed the correct determination by
                      the ICJ of the unprecedented creation of a “provisional demilitarized
                      zone”, whereby it seeks to protect, in my understanding, not only the ter-
                      ritory at issue, but also the populations that live thereon, as well as the set
                      of monuments found therein, conforming the Temple of Preah Vihear.
                      This latter integrates, as from 2008, by decision of the World Heritage
                      Committee of UNESCO, its World Heritage List, which constitutes the
                      cultural and spiritual heritage of humankind (I.C.J. Reports 2011 (II),
                      pp. 588‑598, paras. 66‑95).

                         31. Beyond the classic territorialist outlook, I proceeded in my separate
                      opinion, lies the human factor, calling for the protection, by the measures
                      indicated or ordered by the ICJ, of the rights to life and personal integ-
                      rity of the members of the local population, as well as the cultural and
                      spiritual heritage of human kind (ibid., pp. 598‑606, paras. 96‑113).
                      Underlying this jurisprudential construction, I added, is the principle of
                      humanity, orienting the search for improvement of the conditions of liv-
                      ing of the population and the realization of the common good (ibid.,
                      p. 606, paras. 114‑115), in the ambit of the new jus gentium of our times
                      (ibid., p. 607, para. 117) 32. In situations of the kind, one cannot consider
                      the territory making abstraction of the local populations (and their cul-
                      tural and spiritual heritage), who, in my view, constitute the most pre-
                      cious component of statehood.

                        32. In its aforementioned provisional measures of protection, the ICJ
                      took into due account not only the territory at issue, but, jointly, the
                      people on territory, i.e., the protection of the population on territory. In my
                      aforementioned separate opinion, I pondered that, beyond the States, are
                         32 And cf., for a comprehensive study, A. A. Cançado Trindade, International Law

                      for Humankind — Towards a New Jus Gentium, 2nd ed., The Hague, Martinus Nijhoff/
                      The Hague Academy of International Law, 2013, pp. 1‑726.

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                      the human beings who compose them (I.C.J. Reports 2011 (I), p. 606,
                      para. 114). In a case of this kind, seemingly only territorial, there is epis-
                      temologically no inadequacy to extend protection also to human life, and
                      to the cultural and spiritual world heritage (the Temple of Preah Vihear),
                      thus avoiding a spiritual damage (ibid., p. 588, para. 66) — as I sought to
                      conceptualize this latter in 2005, within the Inter‑American Court of
                      Human Rights (IACtHR), in my separate opinion in the case of the Moi‑
                      wana Community v. Suriname (judgment of 15 June 2005).

                         33. In my separate opinion in the Court’s Order of 18 July 2011 in the
                      present case of the Temple of Preah Vihear, I deemed it fit to warn that,
                      in effect, not everything in the cas d’espèce can be subsumed under territo-
                      rial sovereignty (I.C.J. Reports 2011 (II), p. 599, para. 99), as the provi-
                      sional measures indicated by the Court encompassed the human rights to
                      life and to personal integrity, as well as cultural and spiritual world heri-
                      tage. In sum, the Court’s Order went “well beyond State territorial sover-
                      eignty, bringing territory, people and human values together” (ibid., p. 600,
                      para. 100), well in keeping with the jus gentium of our times (ibid.,
                      pp. 606‑607, paras. 115 and 117).

                                 VI. The Parties’ Submissions as to the Compliance
                                            with the Order of the ICJ
                                      on Provisional Measures of Protection

                         34. As I have already mentioned, in my perception the Requests for
                      provisional measures of protection and for interpretation of the
                      1962 Judgment appear interrelated (para. 28, supra). In all likelihood the
                      Request for interpretation would not have been lodged with the Court if
                      the aforementioned armed hostilities between Thailand and Cambodia
                      had not occurred. Such armed hostilities form the factual context which
                      originated the Request for interpretation as well as the Request for provi-
                      sional measures of protection, and rendered necessary the adoption of
                      those measures by the Court.
                         35. As from the Court’s Order of 18 July 2011, the contending Parties
                      were faced with the duty to comply with it, binding as such protective
                      measures are. It should not pass unnoticed that, in the course of the pro-
                      ceedings before the ICJ as to the Request for interpretation, both Thai-
                      land and Cambodia deemed it fit to present to the Court their views
                      concerning compliance with the Court’s provisional measures 33. The pre-

                         33 They did so in compliance with resolutory point (C) of the ICJ’s Order of 18 July

                      2011, in their correspondence sent to the Court, after its Order, from July 2011 until
                      July 2012.

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                      paredness of the Parties to do so is commendable, and significant, and
                      should have been so acknowledged by the Court in the present Judgment
                      in the case of the Temple of Preah Vihear, that the Court has just adopted.
                         36. The oral arguments of the two Parties, in the course of the pro-
                      ceedings of mid‑April 2013 on the Request for interpretation, are reveal-
                      ing. Thailand expressed its understanding that the “most important
                      purpose” which led to the adoption by the Court of its Order on provi-
                      sional measures of protection was :
                                “to prevent a recurrence of the loss of human life which unfortunately
                                had taken place in the area. The Order also noted allegations of dam-
                                age to property. Since the adoption of the Order, the ceasefire in the
                                area, which Thailand and Cambodia had adopted before the Order,
                                has continued. There has been no recurrence of armed incidents or
                                loss of life ; and there has been no damage to property. (. . .) [T]he
                                situation on the ground is consistent with the purposes of the Order.” 34
                         37. Cambodia stated that it ascribed to the decision (on interpretation)
                      that the Court was to render much importance, as it would “condition the
                      relations between the two States”, on which “depend the peace and secu-
                      rity in the region” 35. Thailand reiterated the “reality on the ground”,
                      after the Court’s Order of provisional measures of protection, “is that the
                      border is peaceful and calm, consistent with the intent of the Court’s
                      Order” 36. Cambodia, for its part, submitted a different version of the
                      facts, in pointing out that

                                “bilateral negotiations on the withdrawal of troops from the Provi-
                                sional Demilitarized Zone, in accordance with the provisional meas-
                                ures decided on by this Court on 18 July 2011, have failed (. . .). As a
                                result, it has not been possible to put in place the Indonesian observers
                                responsible, under the auspices of ASEAN, for monitoring the with-
                                drawal of troops from the Temple area pending your final judgment.” 37

                                    VII. The States’ Duties to Refrain from the Threat
                                               or Use of Force and to Reach
                                      a Peaceful Settlement of the Dispute at Issue

                        38. I have already pointed out that, in the cas d’espèce, the dispute
                      opposing Thailand to Cambodia concerns mainly the withdrawal of forces
                           34
                            CR 2013/3, of 17 April 2013, pp. 22‑23, para. 39.
                           35
                            CR 2013/5, of 18 April 2013, p. 48.
                         36 CR 2013/6, of 19 April 2013, p. 51.
                         37 CR 2013/1, of 15 April 2013, pp. 18‑19, para. 10. Cambodia further argued that the

                      armed incidents by the border were “provoked” by Thailand as “reprisals to the inscription
                      of the Temple in the World Heritage List of UNESCO” (ibid., pp. 23‑24, para. 6).

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                      from the Temple or its vicinity, keeping in mind the general principles of
                      international law of the prohibition of the threat or use of force, and of
                      peaceful settlement of international disputes (para. 26, supra). In its pres-
                      ent interpretation of judgment, that the Court has just adopted, it right-
                      fully draws attention to the principles of the Charter of the United Nations
                      (Judgment, para. 106), in particular those of importance in the present
                      case of the Temple of Preah Vihear (cf. supra).
                         39. In fact, on other recent occasions the ICJ has likewise asserted,
                      e.g., the State’s duty of co‑operation and peaceful settlement, in its Judg-
                      ments in the case concerning Pulp Mills on the River Uruguay (Argentina
                      v. Uruguay) (I.C.J. Reports 2010 (I), pp. 105‑106, para. 281) ; in the
                      Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of
                      the Congo) case (I.C.J. Reports 2010 (II), pp. 691‑692, paras. 163‑164) ;
                      and in the case of the Application of the Interim Accord of 13 September
                      1995 (the former Yugoslav Republic of Macedonia v. Greece) (I.C.J. Reports
                      2011 (II), p. 644). In this last case, the ICJ emphasized that

                                “the 1995 Interim Accord places the Parties under a duty to negotiate
                                in good faith under the auspices of the Secretary‑General of the
                                United Nations pursuant to the pertinent Security Council resolu-
                                tions with a view to reaching agreement on the difference described
                                in those resolutions” (ibid., p. 692, para. 166).
                         40. Such duty of peaceful settlement grows in importance in face of
                      threats of, or actual recourse to, the use of force, in breach of a funda-
                      mental principle enshrined into Article 2 (4) of the UN Charter. The ICJ
                      is “the principal judicial organ of the United Nations” (Article 92 of the
                      Charter, and Article 1 of the Statute). Its Statute forms an integral part of
                      the UN Charter. The ICJ is thus bound to make sure, in the settlement of
                      inter‑State disputes lodged with it, that the contending Parties abide by
                      the fundamental principles enshrined into the UN Charter, such as those
                      of non‑use of force (Article 2 (4)) and of peaceful settlement of interna-
                      tional disputes (Article 2 (3)).

                        41. The Court not only has an inherent faculty to do so, in the exercise
                      of its functions ; in effect, it is bound to do so, to secure compliance by
                      States with the general principles of international law. May it be recalled
                      that, almost four decades ago, the ICJ pondered, in its Judgment
                      of 20 December 1974 in the Nuclear Tests (Australia v. France) case, that
                                “the Court possesses an inherent jurisdiction enabling it to take such
                                action as may be required (. . .). Such inherent jurisdiction (. . .)
                                derives from the mere existence of the Court as a judicial organ estab-
                                lished by the consent of States, and is conferred upon it in order that
                                its basic judicial functions may be safeguarded.” 38

                           38   Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 259‑260.

                      59

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                         42. As to the significance of the general principles of international law,
                      of prohibition of use or threat of force and of peaceful settlement of dis-
                      putes, enshrined into the UN Charter (Article 2 (4) and (3)), suffice it
                      here, in the present separate opinion, to refer to my considerations already
                      developed in my previous separate opinion in the Court’s Order (of 18 July
                      2011) in the present case of the Temple of Preah Vihear 39. Earlier on, on
                      six other occasions so far, I have likewise drawn attention to the relevance
                      of general principles 40. The necessary attention to those principles brings
                      us closer to the domain of superior [higher] human values, to be safe-
                      guarded, not sufficiently worked upon in international case law and doc-
                      trine. It is, ultimately, those principles that inform and conform the
                      applicable norms, and ultimately any legal system.

                                            VIII. The Ineluctable Relationship
                                             between Motifs and Dispositif

                         43. Another particular issue that comes to the fore in the cas d’espèce
                      is the relationship of the resolutory points of a judgment (in the dispositif )
                      with the corresponding motifs. May it be recalled that, in its Judgment
                      of 15 June 1962 in the present case of the Temple of Preah Vihear, the ICJ
                      stated :
                             “Referring finally to the Submissions presented at the end of the
                           oral proceedings, the Court, for the reasons indicated at the beginning
                           of the present Judgment, finds that Cambodia’s first and second Sub-
                           missions, calling for pronouncements on the legal status of the Annex I
                           map and on the frontier line in the disputed region, can be entertained
                           only to the extent that they give expression to grounds, and not as

                         39 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning

                      the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional
                      Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), separate opinion of Judge
                      Cançado Trindade, paras. 72‑81 and 114‑115.
                         40 Namely, in my separate opinion (paras. 8‑113 and 191‑217) in the case of the Pulp

                      Mills on the River Uruguay (Argentina v. Uruguay) (I.C.J. Reports 2010 (I)) ; in my sepa-
                      rate opinion (paras. 177‑211) in the Advisory Opinion on the Accordance with International
                      Law of the Unilateral Declaration of Independence in Respect of Kosovo (I.C.J. Reports
                      2010 (II)) ; in my separate opinion (paras. 93‑106) in the Ahmadou Sadio Diallo (Republic
                      of Guinea v. Democratic Republic of the Congo) case (I.C.J. Reports 2010 (II)) ; in my
                      dissenting opinion (paras. 79‑87) in the case concerning the Application of the International
                      Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
                      Federation) (I.C.J. Reports 2011 (I)) ; in my separate opinion (paras. 28‑51 and 82‑100) in
                      the Advisory Opinion on a Judgment No. 2867 of the Administrative Tribunal of the Interna‑
                      tional Labour Organization upon a Complaint Filed against the International Fund for Agri‑
                      cultural Development (I.C.J. Reports 2012 (I)) ; and in my separate opinion (paras. 74‑76)
                      in the Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)
                      case (I.C.J. Reports 2012 (I)).

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                           claims to be dealt with in the operative provisions of the Judgment. It
                           finds on the other hand that Thailand, after having stated her own
                           claim concerning sovereignty over Preah Vihear, confined herself in
                           her Submissions at the end of the oral proceedings to arguments and
                           denials opposing the contentions of the other Party, leaving it to the
                           Court to word as it sees fit the reasons on which its Judgment is based.
                              In the presence of the claims submitted to the Court by Cambodia
                           and Thailand, respectively, concerning the sovereignty over
                           Preah Vihear thus in dispute between these two States, the Court finds
                           in favour of Cambodia in accordance with her third Submission. It
                           also finds in favour of Cambodia as regards the fourth Submission
                           concerning the withdrawal of the detachments of armed forces.”
                           (I.C.J. Reports 1962, p. 36.)
                         44. The Court then found that : (1) “the Temple of Preah Vihear is
                      situated in territory under the sovereignty of Cambodia” ; and, in conse-
                      quence, that : (2) “Thailand is under an obligation to withdraw any mili-
                      tary or police forces, or other guards of keepers, stationed by her at the
                      Temple, or in its vicinity on Cambodian territory” (ibid., pp. 36‑37).
                      Before laying down the resolutory points, the ICJ made a cross‑reference
                      to the reasons which led it to decide the way it did. This is not the first
                      time that the relationship between such reasons and the resolutory points
                      comes to the fore.

                                   1. Overview of the Case Law of the Hague Court
                                            (PCIJ and ICJ) on the Matter
                         45. In fact, already in its time, the Permanent Court of International
                      Justice (PCIJ) dwelt upon the matter at issue. Thus, in the case of the
                      Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), opposing
                      Germany to Poland, the PCIJ observed that a difference of opinion
                      should exist between the contending Parties as to the points, “decided
                      with binding force”, in the judgment at issue, for a request for interpreta-
                      tion be lodged with it under Article 60 of the Statute. Having said so, the
                      PCIJ added :
                               “That does not imply that it must be beyond dispute that the point
                           the meaning of which is questioned is related to a part of the judgment
                           having binding force. A difference of opinion as to whether a particu-
                           lar point has or has not been decided with binding force also
                           constitutes a case which comes within the terms of the provision in
                            question, and the Court cannot avoid the duty incumbent upon it of
                            interpreting the judgment in so far as necessary, in order to adjudi-
                            cate upon such a difference of opinion.” (Judgment No. 11, 1927,
                            P.C.I.J., Series A, No. 13., pp. 11‑12.)
                        46. In other words, the Court is not to restrict itself only to the operative
                      part of the judgment, making abstraction of all its reasoning which led to it

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                      and supports it. The Court is to bear it in mind, and take it into account
                      whenever needed. Only in this way can it produce a proper interpretation
                      clarifying — as it said — “the true meaning and scope” of its judgment at
                      issue (P.C.I.J., Series A No. 13, p. 14). Motifs and dispositif cannot simply
                      be dissociated from each other ; they go together, the former setting the
                      grounds on which the latter was established. Already at the time of the
                      PCIJ, in the late twenties, this was the prevailing understanding on this
                      particular point.
                         47. Years later, the ICJ, in its Judgment of 27 November 1950 on
                      Request for Interpretation of the Judgment of 20 November 1950 in the
                      Asylum Case (Colombia v. Peru), stated that a request for interpretation
                      of a judgment must aim solely at obtaining clarification on “the meaning
                      and the scope of what the Court has decided with binding force” (I.C.J.
                      Reports 1950, p. 402). In my view, if the operative part is not clear enough,
                      the Court, in providing the interpretation requested, has to take into
                      account the reasons set forth in the corresponding motifs.
                         48. The Court had the occasion to do this, half a century later, in its
                      Judgment of 25 March 1999, on the Request for Interpretation of the Judg‑
                      ment of 11 June 1998 in the Case concerning the Land and Maritime Bound-
                      ary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
                      Objections (Nigeria v. Cameroon). The Court identified the reasons, set
                      forth in the motifs (in two paragraphs of the previous judgment) which pro-
                      vided the grounds for the operative part of the judgment at issue, and were
                      thus “inseparable” from that operative part (I.C.J. Reports 1999 (I), p. 36,
                      para. 11). The ICJ had warned that any request for interpretation (under
                      Article 60 of the Statute) “must relate to the operative part of the judgment”
                      and can only concern “the reasons for the judgment” in so far as “these are
                      inseparable from the operative part” (ibid., p. 36, para. 10).
                         49. Earlier on, in its Judgment of 10 December 1985 on the Application
                      for Revision and Interpretation of the Judgment of 24 February 1982 in the
                      Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
                      (Tunisia v. Libyan Arab Jamahiriya), the ICJ recalled (I.C.J. Reports 1985,
                      pp. 217‑218, para. 46) the célèbre obiter dictum of the PCIJ in the Interpre‑
                      tation of Judgments Nos. 7 and 8 (Factory at Chorzów) case (cf. supra).
                      Recently, in its Judgment of 19 January 2009 on the Request for Interpreta‑
                      tion of the Judgment of 31 March 2004 in the Case concerning Avena
                      and Other Mexican Nationals (Mexico v. United States of America)
                      (Mexico v. United States of America), the ICJ referred to its jurisprudence
                      constante (supra) in respect of requests for interpretation of judgments
                      (I.C.J. Reports 2009, p. 10, para. 21). In sum, in my perception, there is
                      indeed an ineluctable relationship between motifs and dispositif. Such rela-
                      tionship has not passed unnoticed in expert writing along the years 41.
                         41 Cf., e.g., L. Cavaré, “Les recours en interprétation et en appréciation de la légalité

                      devant les tribunaux internationaux”, 15 Zeitschrift für ausländisches öffentliches Recht und
                      Völkerrecht (1954), p. 488 ; E. Zoller, “Observations sur la révision et l’interprétation des
                      sentences arbitrales”, 24 Annuaire français de droit international (1978), p. 343 ; E. Decaux,
                      “L’arrêt du 10 décembre 1985 de la Cour internationale de Justice sur la demande en revi-

                      62

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                                                    2. Reason and Persuasion
                         50. Half a decade ago, in another international jurisdiction, I had the
                      occasion, in my separate opinion appended to the interpretation of judg-
                      ment of 2 August 2008 of the Inter‑American Court of Human Rights
                      (IACtHR), in the case of the Prison of Castro‑Castro v. Peru, to ponder
                      that reason and persuasion go together with the verdict. Resolutory points
                      cannot be dissociated from the Court’s reasoning which provides their
                      foundations. Already in Aeschylus’s Eumenides (458 bc), Athena felt the
                      need — in announcing the creation, forever, of the Areios Pagos — to
                      provide explanation for judicial decisions and to persuade as to their
                      rightness. All international tribunals of our times devote their labour also
                      to reason and persuasion in respect of their own judgments ; the meaning
                      and extent of their decisions can only be properly appreciated in the light
                      of their reasoning — which brings to the fore the ineluctable subjective
                      element of the judges’ thinking (paras. 38‑39, 41‑42, 44 and 46).

                         51. The ICJ has been faced with this matter in the present interpreta-
                      tion of judgment, which it has just delivered, in the case of the Temple of
                      Preah Vihear. In my understanding, the reasons which substantiate a
                      resolutory point reached at by an international tribunal are regularly
                      expounded in the motifs of its judgment at issue. There would be no sense
                      in attempting to “separate” such motifs from the corresponding dispositif,
                      and taking into account only this latter. The two go together. Is there any
                      judgment where the operative part stands on its own ? Not at all ; this lat-
                      ter is regularly supported by the motifs. In saying what the law is (i.e., in
                      exercising its juris dictio), an international tribunal is bound to determine
                      the applicable law, and to expound its own understanding of the appli-
                      cable law and of its application in the cas d’espèce. We are here, once
                      again, faced with reason and persuasion.

                                             3. The Everlasting Acknowledgment
                                         of the Relevance of Sound Legal Reasoning
                         52. The relevance of sound legal reasoning has been duly acknowledged
                      since ancient times. In effect, the exercise of legal reasoning (i.e., the elabo-
                      ration of the motifs/la motivation) has historical roots which go back, e.g.,
                      to ancient Roman law. In his fragments, Ulpian (circa 170‑228 ad) took

                      sion et en interprétation de l’arrêt du 24 février 1982 en l’affaire du Plateau continental”,
                      31 Annuaire français de droit international (1985), p. 338 ; P. Dumberry, “Le recours en
                      interprétation des arrêts de la Cour internationale de Justice et des sentences arbitrales”,
                      13 Revue québécoise de droit international (2000), pp. 213 and 220 ; S. Rosenne, Interpre‑
                      tation, Revision and Other Recourse from International Judgments and Awards, Leiden,
                      Martinus Nijhoff, 2007, pp. 94‑95, 98‑100 and 108‑111.

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                      juris‑prudencia (from the verb providere) as referring to the knowledge of
                      what is just and unjust ; in dispensing justice, jurisprudencia was understood
                      as teaching how justice was to be realized, besides showing that the pro
                      cedure had been well followed 42. His writings altogether, undertaken in
                      the period 211‑222 ad, are believed to have considerably contributed to
                      Justinian’s Digest (the main volume of his Corpus Juris Civilis, 529
                      to 534 ad) 43, providing not less than a third of its contents.
                         53. As from Ulpian’s teaching, the Digest rendered certain maxims
                      widespread, such as “justitia est constans et perpetua voluntas suum cuique
                      tribuere” (“justice is the constant and perpetual will to give everyone his
                      due”) ; or else, “honeste vivere, alterum non laedere, suum cuique tribuere”
                      (“to live honourably, to harm no one, to give each one his due”). Juris‑
                      prudencia developed, elaborating on general principles ; it started arising
                      attention, having assumed a certain creative (Praetorian) role. Legal rea-
                      soning kept on attracting increasing attention in modern times, amidst
                      widespread acknowledgment of its relevance.

                          54. The elaboration of sound legal reasoning, for its part, sought
                      coherence and harmony, so as to avoid contradictions. It did not amount
                      to a syllogism, nor did it exhaust itself in the simple identification of the
                      applicable norms. It went further than that, encompassing interpre
                      tation, and recourse to sources of law (including principles, doctrine, and
                      equity), bearing in mind human values 44. Prudence played its role, in
                      jurisprudencia. In such elaboration of sound legal reasoning, we are faced,
                       once more, with reason and persuasion.

                         55. One can speak of the object of a judicial decision in two senses,
                      namely : in a strictly procedural sense, it amounts to what has actually
                      been decided (the dispositif ) ; and in a material or substantial sense, it
                      encompasses also what formed the matter of the contentieux. The judg-
                      ment itself, in my understanding, encompasses not only the decision
                      reached by the international tribunal (the dispositif), but also the reason-
                      ing of this latter, the indication of the sources of law it resorts to, the
                      fundamental principles it relies upon, and other considerations that it
                      deems fit to develop (the motifs). In effect, to my mind, motifs and disposi‑
                      tif form an organic, inseparable whole.
                         56. The issue became object of special attention in the legal doctrine of
                      the nineteenth century, which upheld the view that the dispositif is to be

                         42 J.‑P. Andrieux, Histoire de la jurisprudence — Les avatars du droit prétorien, Paris,

                      Vuibert, 2012, pp. 11, 13‑14, 19, 23 and 161 ; and cf. pp. 241, 263, 281 and 284.
                         43 Cf. T. Honoré, Justinian’s Digest : Character and Compilation, Oxford University

                      Press, 2010, pp. 5, 53, 74, 103, 119 and 142.
                         44 Cf. [Various Authors], Le raisonnement juridique (ed. P. Deumier), Paris, Dalloz,

                      2013, pp. 25, 31, 33, 75, 95‑98, 101, 109‑110, 240, 246 and 268.

                      64

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                      342 	 request for interpretation (sep. op. cançado trindade)

                      approached together with the reasoning (the motifs) which give support
                      to it. This understanding then prevailed in civil procedural law (in coun-
                      tries of that legal tradition), before being transposed into the interna-
                      tional legal procedure. According to an account of one of its exponents,
                              “According to the well‑known teaching of Savigny, the judgment
                           is a sole and inseparable whole ; there is, between the foundations and
                           the dispositif, a relationship so intimate that ones and the other can
                           never be dismembered if one does not wish to denaturalize the logical
                           and juridical unity of the decision. This was the dominant idea in the
                           last century (. . .).” 45
                         57. With the passing of time, however, under the influence of legal
                      positivism, a more simplistic view came to prevail, to the effect that only
                      the dispositif forms the object of a judicial decision 46. This argument
                      sought to shift attention onto the terms of a judgment which were bind-
                      ing ; it overvalued them, making abstraction of the other parts of the
                      judgment. It was as if the operative part of a judgment could be severed
                      from the other parts of it, and become binding by itself, independently of
                      the whole reasoning developed by the tribunal in its support. It is not
                      surprising that this superficial view became widespread, as it did not
                      require much thinking.

                         58. Positivists, for example, tend characteristically to be very dogmatic
                      in stating and insisting that the binding effect of a judgment attaches only
                      to its operative part, i.e., its resolutory points, and does not extend to its
                      reasoning. This is a strictly formalistic approach. The res judicata is thus
                      brought into the picture, minimizing the reasoning supporting it. This is
                      what — to recall but one illustration of this outlook — Judge Dioni-
                      sio Anzilotti upheld in his dissenting opinion in the aforementioned case
                      Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów) ; yet, as a
                      learned jurist, Anzilotti, after so asserting, conceded :

                              “When I say that only the terms of a judgment are binding, I do
                           not mean that only what is actually written in the operative part con-
                           stitutes the Court’s decision. On the contrary, it is certain that it is
                           almost always necessary to refer to the statement of reasons to under-
                           stand clearly the operative part and above all to ascertain the causa
                           petendi.” (Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 24,
                           para. 2.)

                         45 E. J. Couture, Fundamentos do Direito Processual Civil, São Paulo, Saraiva, 1946,

                      pp. 354‑355 ; E. J. Couture, Fundamentos del Derecho Procesal Civil, 4th ed., Montevideo/
                      Buenos Aires, Ed. B de F, 2002, p. 347 [my own translation].
                         46 E. J. Couture, Fundamentos do Direito . . ., op. cit. supra note 45, pp. 355 and 358 ;

                      Fundamentos del Derecho . . ., op. cit. supra note 45, pp. 348 and 350.

                      65

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                      343 	 request for interpretation (sep. op. cançado trindade)

                         59. The reasoning or the motifs of a judgment can be freely resorted to,
                      in the interpretation of any point or passage of the dispositif which
                      requires clarification ; in fact, it will be hardly possible to determine the
                      exact scope of a dispositif without taking into account the reasoning (the
                      motifs). They may indeed appear inseparable from each other, and there
                      are even the dispositifs that deem it fit to make express cross‑references to
                      corresponding paragraphs of the motifs 47. In the present interpretation of
                      judgment, for example, resolutory point No. 2 of the dispositif expressly
                      refers to paragraph 97 of the motifs.

                         60. Legal reasoning is not simply an intellectual output (of logic), as
                      the search for justice is also moved by experience and social equity. As
                      already indicated, the function of the judge is not reduced simply to pro-
                      duce syllogisms, far from it : jurisprudential construction goes further
                      than that, it resorts to all available sources of law, it has a latitude of
                      choice, it matches the facts with the applicable norms, and it tells what
                      the law is, in the exercise of juris dictio. Legal reasoning counts on the
                      subjective element of the judge’s thinking.

                         61. In this respect, over half a century ago Piero Calamandrei used to
                      recall that sententia derives from sentiment, as indicated by etymology.
                      He further warned that the subjects of law (sujets de droit) are not trans-
                      formed into a dossier (as hinted by bureaucratic indifference), but remain
                      “living persons”. In legal reasoning, electronic machines will never replace
                      human beings. The requisite of providing the motifs (la motivation)
                      appears as the “rationalization of the sense of justice” 48. The reasoning
                      (motifs) of a judgment is thus important, besides being pedagogical : it
                      “serves to demonstrate that the judgment is just, and why it is just” 49.
                      Sententia emanates from human conscience, moved by the sense of
                      justice.

                                              IX. Concluding Observations

                         62. I have now come to my concluding observations. It is not my inten-
                      tion to reiterate here the considerations I developed, in my separate opin-
                      ion in the ICJ’s Order of provisional measures of protection, of 18 July

                        47 E. J. Couture, Fundamentos do Direito . . ., op. cit. supra note 45, pp. 357 and 360 ;

                      Fundamentos del Derecho . . ., op. cit. supra note 45, pp. 349 and 351.
                        48 P. Calamandrei, Proceso y Democracia, Buenos Aires, Ed. Jurídicas Europa‑

                      América, 1960, pp. 67, 80‑81 and 125.
                        49 Ibid., pp. 116‑117, and cf. p. 81.

                      66

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                      344 	 request for interpretation (sep. op. cançado trindade)

                      2011, on the perennial issue of time and law 50. In the present separate
                      opinion, I now limit myself to refer to my reflections developed therein,
                      with only one additional point. We all live and work within time, and the
                      acceptance of the passing of time is one of the greatest challenges of
                      human existence. In the present interpretation of judgment, the Court
                      addressed with timidity (Judgment, para. 75) the effects of facts subse-
                      quent to the original judgment upon the requested interpretation of judg-
                      ment. This requires, in my perception, a clarification.

                         63. In its present interpretation of judgment in the case of the Temple
                      of Preah Vihear, the ICJ has repeatedly taken note of the facts, subse-
                      quent to its original Judgment of 1962 in the cas d’espèce, which have
                      been brought to its attention by the contending Parties 51. And it could
                      not have done otherwise. Having done so, it undertook the exercise of
                      providing the requested interpretation of the original 1962 Judgment,
                      focusing on its dispositif together with the corresponding motifs. It stated
                      that, in determining the meaning and scope of the resolutory points (or
                      the dispositif ) of the original 1962 Judgment, it had regard to the corre-
                      sponding motifs, to the extent that its own pertinent reasoning shed light
                      on the dispositif (ibid., para. 68). It then clarified the meaning of the
                      “vicinity” of the Temple of Preah Vihear (ibid., paras. 97‑98).
                         64. Already in its provisional measures of protection indicated in its
                      Order of 18 July 2011 in the present case of the Temple of Preah Vihear,
                      the Court — as I pointed out in my previous separate opinion — brought
                      together territory, people and human values, well in keeping with the jus
                      gentium of our times (I.C.J. Reports 2011 (II), paras. 100, 114‑115
                      and 117). And today, 11 November 2013, it does so again in the present
                      interpretation of judgment, wherein it has deemed it fit to assert that
                                  “As is clear from the record of both the present proceedings and
                                those of 1959‑1962, the Temple of Preah Vihear is a site of religious
                                and cultural significance for the peoples of the region and is now listed
                                by UNESCO as a world heritage site (. . .). In this respect, the Court
                                recalls that under Article 6 of the [1972] World Heritage Convention,
                                to which both States are parties, Cambodia and Thailand must co-
                                operate between themselves and with the international community in
                                the protection of the site as a world heritage. In addition, each
                                State is under an obligation not to take ‘any deliberate measures
                                which might damage directly or indirectly’ such heritage.” (Judgment,
                                para. 106.)

                         50 I have also dwelt upon this issue in my dissenting opinion (paras. 46‑64 and 74‑77)

                      in the case of Questions relating to the Obligation to Prosecute or Extradite (Belgium
                      v. Senegal) (I.C.J. Reports 2009) followed by my separate opinion in the same case
                      (paras. 145‑157) (I.C.J. Reports 2012 (II)).
                           51   Cf., to this effect, paragraphs 25, 39-40, 43‑44 and 106 of the present Judgment.

                      67

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                      345 	 request for interpretation (sep. op. cançado trindade)

                         65. In a proper inter‑temporal dimension, the Court, in my perception,
                      has thus endorsed the ongoing process of humanization of interna-
                      tional law — to which I have been endeavouring to contribute,
                      successively within two distinct international jurisdictions, since the

                      mid‑nineties 52. A parallel between the Judgment of 1962 and the present
                      interpretation of judgment of 2013 in the case of the Temple of
                      Preah Vihear gives clear testimony of that. By giving its due to the pres-
                      ervation of world cultural heritage, parallel to the safeguard of territorial
                      sovereignty, the Court is contributing to the avoidance of a spiritual dam‑
                      age (cf. paras. 32‑33, supra).

                         66. It does so at the same time that it draws attention to the relevance
                      of general principles of international law, such as of prohibition of use or
                      threat of force and of peaceful settlement of disputes (paras. 38‑39, supra).
                      The necessary attention to those principles brings us closer to the domain
                      of higher human values 53, shared by the international community as a
                      whole. It is, ultimately, those principles that inform and conform the
                      applicable norms. Without them, there is ultimately no legal system at
                      all ; hence their utmost importance, at both international and domestic
                      levels.

                        67. After all, it is the fundamental principles that confer cohesion,
                      coherence and legitimacy, and the ineluctable axiological dimension, to
                      every legal system. In effect, general principles permeate the whole inter-
                      national legal order ; they conform their substratum, being consubstantial
                      to it. They give expression to the idea of an objective justice, above the
                      will of individual States. They indicate, at last, the status conscientiae
                      reached by the international community as a whole.

                                                 (Signed) Antônio Augusto Cançado Trindade.

                         52 For an account of my endeavours in this respect, in the international case law,

                      from 1997‑1998 onwards, cf. A. A. Cançado Trindade, Los Tribunales Internacio‑
                      nales Contemporáneos y la Humanización del Derecho Internacional, Buenos Aires, Edit.
                      Ad‑Hoc, 2013, pp. 163‑185 ; and cf., earlier on, e.g., A. A. Cançado Trindade, “A Eman-
                      cipação do Ser Humano como Sujeito do Direito Internacional e os Limites da Razão de
                      Estado”, 6/7 Revista da Faculdade de Direito da Universidade do Estado do Rio de Janeiro
                      (1998‑1999), pp. 425‑434 ; A. A. Cançado Trindade, A Humanização do Direito Interna‑
                      cional, Belo Horizonte/Brazil, Edit. Del Rey, 2006, pp. 3‑409.
                         53 I have further dwelt upon the importance of fundamental human values in my

                      dissenting opinion (paras. 32‑40) in the case of the Jurisdictional Immunities of the State
                      (Germany v. Italy) (I.C.J. Reports 2012 (I)).

                      68

8 Ord 1050.indb 132                                                                                25/06/14 13:11


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING PASSAGE
THROUGH THE GREAT BELT

(FINLAND vy. DENMARK)

ORDER OF 29 JULY 1991

1991

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DU PASSAGE PAR LE GRAND-BELT

(FINLANDE c. DANEMARK)

ORDONNANCE DU 29 JUILLET 1991
Official citation :

Passage through the Great Belt (Finland v. Denmark),
Order of 29 July 1991, I.C.J. Reports 1991, p. 41

Mode officiel de citation :

Passage par le Grand-Belt (Finlande c. Danemark),
ordonnance du 29 juillet 1991, C.IJ. Recueil 1991, p. 41

Sales number 5 9 6
N° de vente :

29 JULY 1991
ORDER

PASSAGE THROUGH THE GREAT BELT
(FINLAND v. DENMARK)

PASSAGE PAR LE GRAND-BELT
(FINLANDE c. DANEMARK)

29 JUILLET 1991
ORDONNANCE
41

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1991

29 juillet 1991

AFFAIRE
DU PASSAGE PAR LE GRAND-BELT

(FINLANDE c. DANEMARK)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et les articles 44 et 45, paragraphe 1,
de son Règlement,

Vu la requête déposée au Greffe de la Cour le 17 mai 1991, par laquelle
la République de Finlande a introduit une instance contre le Royaume du
Danemark au sujet d’un différend concernant le passage par le Grand-
Belt (Storebælt),

Vu l’ordonnance du 29 juillet 1991 par laquelle la Cour s’est prononcée
sur la demande en indication de mesures conservatoires présentée par la
Finlande le 23 mai 1991, et dans laquelle la Cour a déclaré notamment
qu’« il est manifestement dans l'intérêt des deux Parties de voir définitive-
ment déterminés leurs droits et obligations respectifs aussitôt que pos-
sible» et qu’«il convient que la Cour, avec la coopération des Parties,
veille à parvenir à une décision sur le fond dans les meilleurs délais » ;

Considérant que, au cours d’une réunion que le Président a tenue avec
les agents des Parties le 29 juillet 1991, les Parties sont convenues des
délais indiqués ci-dessous,

Fixe comme suit les dates d'expiration des délais pour le dépôt des
pièces de la procédure écrite:
PASSAGE PAR LE GRAND-BELT (ORDONNANCE 29 VII 91) 42

Pour le mémoire de la République de Finlande, le 30 décembre 1991;
Pour le contre-mémoire du Royaume du Danemark, le 1° juin 1992;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de
la Paix, à La Haye, le vingt-neuf juillet mil neuf cent quatre-vingt-onze,
en trois exemplaires, dont l’un restera déposé aux archives de la Cour et
les autres seront transmis respectivement au Gouvernement de la Répu-
blique de Finlande et au Gouvernement du Royaume du Danemark.

Le Président,
(Signé) R. Y. JENNINGS.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.