INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. HONDURAS)

ORDER OF 21 APRIL 1989

1989

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES ACTIONS ARMEES
FRONTALIERES ET TRANSFRONTALIERES
(NICARAGUA c. HONDURAS)

ORDONNANCE DU 21 AVRIL 1989
Official citation:

Border and Transborder Armed Actions
(Nicaragua v. Honduras), Order of 21 April 1989,
LCJ. Reports 1989, p. 6.

Mode officiel de citation :

Actions armées frontalières et transfrontalières
{Nicaragua c. Honduras), ordonnance du 21 avril 1989,
C.L.J. Recueil 1989, p. 6.

Sales number 5 5 0
N° de vente :

1989
21 April
General List
No. 74

INTERNATIONAL COURT OF JUSTICE

YEAR 1989

21 April 1989

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. HONDURAS)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to
Articles 31, 44 and 45 of the Rules of Court,

Having regard to the Order of 22 October 1986, by which the Court de-
cided, inter alia, that the written proceedings should first be addressed to
the questions of the jurisdiction of the Court.to entertain the dispute and
of the admissibility of the Application and fixed time-limits for the filing
of a Memorial by the Republic of Honduras and a Counter-Memorial by
the Republic of Nicaragua on the questions of jurisdiction and admissi-
bility,

Having regard to the Judgment of 20 December 1988, by which the
Court found that it has jurisdiction to entertain the Application filed by
the Republic of Nicaragua on 28 July 1986 and that that Application was
admissible;

Whereas the suspension of the proceedings on the merits pending
settlement of the questions of jurisdiction and admissibility has thus come
to an end with the delivery of the Judgment of 20 December 1988, and the
Court is therefore required to fix time-limits for written pleadings on the
merits,

Having ascertained the views of the Parties,
7 ARMED ACTIONS (ORDER 21 IV 89)

Fixes time-limits as follows for written proceedings on the merits:

19 September 1989 for the Memorial of the Republic of Nicaragua;

19 February 1990 for the Counter-Memorial of the Republic of Hon-
duras;

And reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-first day of April, one thousand
nine hundred and eighty-nine, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of the Republic of Nicaragua and the Government of the Republic of
Honduras, respectively.

(Signed) José Maria Rupa,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


26

SEPARATE OPINION OF JUDGE LACHS

While concurring in the Court’s decision I consider it my duty to place
on record certain considerations in respect of the circumstances in which
it fell to be taken. Clouded as the circumstances may have been, some legal
implications may be ascertained.

In the normal course of events, the request made to the Court in pro-
ceedings instituted on the basis of the Montreal Convention would have
faced the Court with the necessity of deciding whether a genuine case
existed for granting interim measures. However Libya’s Application and
request were placed before the Court when the Lockerbie catastrophe and
the wider problem of international terrorism, which merits condemnation
in all its manifestations, were already on the agenda of the Security Coun-
cil, which had brought them together under the terms of resolution 731
(1992). The Council, by moving onto the terrain of Chapter VII of the
Charter, decided certain issues pertaining to the Lockerbie disaster with
binding force. Hence problems of jurisdiction and the operation of the sub
judice principle came into the foreground as never before.

While the Court has the vocation of applying international law as a uni-
versal law, operating both within and outside the United Nations, it is
bound to respect, as part of that law, the binding decisions of the Security
Council. This of course, in the present circumstances, raises issues of con-
current jurisdiction as between the Court and a fellow main organ of the
United Nations.

The framers of the Charter, in providing for the existence of several
main organs, did not effect a complete separation of powers, nor indeed is
one to suppose that such was their aim. Although each organ has been
allotted its own Chapter or Chapters, the functions of two of them, namely
the General Assembly and the Security Council, also pervade other Chap-
ters than their own. Even the International Court of Justice receives, out-
side its own Chapter, a number of mentions which tend to confirm its role
as the general guardian of legality within the system. In fact the Court is
the guardian of legality for the international community as a whole, both
within and without the United Nations. One may therefore legitimately
suppose that the intention of the founders was not to encourage a blink-
ered parallelism of functions but a fruitful interaction.

27
27 1971 MONTREAL CONVENTION (SEP. OP. LACHS)

Two of the main organs of the United Nations have the delivery of bind-
ing decisions explicitly included in their powers under the Charter: the
Security Council and the International Court of Justice. There is no doubt
that the Court’s task is “to ensure respect for international law...” (C.J.
Reports 1949, p. 35). It is its principal guardian. Now, it has become clear
that the dividing line between political and legal disputes is blurred, as law
becomes ever more frequently an integral element of international con-
troversies. The Court, for reasons well known so frequently shunned in
the past, is thus called upon to play an ever greater role. Hence it is import-
ant for the purposes and principles of the United Nations that the two
main organs with specific powers of binding decision act in harmony
— though not, of course, in concert — and that each should perform its
functions with respect to a situation or dispute, different aspects of which
appear on the agenda of each, without prejudicing the exercise of the
other’s powers. In the present case the Court was faced with a new situa-
tion which allowed no room for further analysis nor the indication of
effective interim measures. The Order made should not, therefore, be seen
as an abdication of the Court’s powers; it is rather a reflection of the sys-
tem within which the Court is called upon to render justice.

Whether or not the sanctions ordered by resolution 748 (1992) have
eventually to be applied, it is in any event to be hoped that the two princi-
pal organs concerned will be able to operate with due consideration for
their mutual involvement in the preservation of the rule of law.

(Signed) Manfred LACHS.

28


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE

TEMPLE OF PREAH VIHEAR

(CAMBODIA v. THAILAND)
PRELIMINARY OBJECTIONS

JUDGMENT OF 26 MAY i961

1961

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU TEMPLE DE

PREAH VIHEAR
(CAMBODGE c. THAÏLANDE)
EXCEPTIONS PRÉLIMINAIRES

ARRÊT DU 26 MAI 1961
This Judgment should be cited as follows:

“Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand), Preliminary Objections,
Judgment of 26 May 1961: I.C.J. Reports 1961, p. 17.”

Le présent arrêt doit être cité comme suit :

« Affaire du temple de Préah Vihéar
(Cambodge c. Thaïlande), Exceptions préliminaires,
Arrêt du 26 mai 1961: C. I. J. Recueil 1961, p. 17.»

Sales number 9 4 5
N° de vente:

17

INTERNATIONAL COURT OF JUSTICE

1961
26 May
General List: YEAR 1961

No.
* 48 26 May 196z

CASE CONCERNING THE
TEMPLE OF PREAH VIHEAR

(CAMBODIA v. THAILAND)
PRELIMINARY OBJECTIONS

Compulsory qurisdiction.—Declaration of 1950, deposited with
Secretary-General of United Nations in accordance with Statute of
International Court of Justice, “renewing’’ declarations of 1929 and
I940 recognizing as compulsory jurisdiction of Permanent Court.—
Article 36, paragraph 5, of Statute—Decision in Israel v. Bulgaria
case.—Distinction between present case and that of Israel v. Bulgaria.
—Renewal of an existing, and revival of a lapsed, declaration —Error
and consent.—Forms and formalities as to declarations of acceptance.
—Rules of interpretation of legal instruments—Communications made
under Article 36, paragraph 4, of Statute —Effect of Thatland’s 1950
Declaration of Acceptance.

JUDGMENT

Present: President WINIARSKI; Vice-President ALFARO; Judges
Bapaw!, MORENO QUINTANA, WELLINGTON Koo, SPIRo-
POULOS, Sir Percy SPENDER, Sir Gerald FITZMAURICE,
KoRETSKY, TANAKA, BUSTAMANTE Y RIVERO, MORELLI;
Registrar GARNIER-COIGNET.
18

TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

In the case concerning the Temple of Preah Vihear,

between

the Kingdom of Cambodia,

represented by

H.E. Truong Cang, Member of the Haut Conseil du Trône,
as Agent,
assisted by

Hon. Dean Acheson, Member of the Bar of the Supreme Court
of the United States of America,

M. Roger Pinto, Professor at the Paris Law Faculty,
M. Paul Reuter, Professor at the Paris Law Faculty,
as Counsel,

and

the Kingdom of Thailand,
represented by

H.S.H. Prince Vongsamahip Jayankura, Ambassador of Thailand
to the Netherlands,

as Agent,

assisted by

The Rt. Hon. Sir Frank Soskice, Q.C., M.P., former Attorney-
General of England,

Mr. Seni Promoj, Member of the Thai Bar,

Mr. James Nevins Hyde, Member of the Bar of the State of
New York and Member of the Bar of the Supreme Court of
the United States,

Me. Marcel Slusny, Member of the Bar of the Brussels Court of
Appeal,

Mr. J. G. Le Quesne, Member of the English Bar,

as Advocates and Counsel,

and

Mr. David S. Downs, Solicitor, Supreme Court of Judicature,
England,

Mr. Sompong Sucharitkul, Member of the Legal Division,
Ministry of Foreign Affairs, .

as Advisers,
19 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

THE COURT,

composed as above,
delivers the following Judgment :

On 6 October 1959, the Minister-Counsellor of the Royal Cam-
bodian Embassy in Paris handed to the Registrar an Application
by the Government of Cambodia, dated 30 September 1959,
instituting proceedings before the Court against the Government
of the Kingdom of Thailand with regard to the territorial sover-
eignty. over the Temple of Preah Vihear.

The Application invoked Article 36 of the Statute of the Court
and the Declarations of 20 May 1950 and 9 September 1957 by
which Thailand and Cambodia respectively recognized as compul-
sory the jurisdiction of the International Court of Justice, as well
as the General Act for the Pacific Settlement of International
Disputes of 26 September 1928.

In accordance with Article 40, paragraph 2, of the Statute, the
Application was communicated to the Government of Thailand.
In accordance with paragraph 3 of the same Article, the other
Members of the United Nations and the non-Member States entitled
to appear before the Court were notified.

Time-limits for the filing of the Memorial and the Counter-
Memorial were fixed by an Order of 5 December 1959. The Memorial
was filed within the time-limit fixed for this purpose. Within the
time-limit fixed for the filing of the Counter-Memorial, the Govern-
ment of Thailand filed preliminary objections to the jurisdiction
of the Court. On 10 June 1960, an Order, recording that the
proceedings on the merits were suspended under the provisions
of Article 62, paragraph 3, of the Rules of Court, granted the
Government of Cambodia a time-limit expiring on 22 July 1960
for the submission of a written statement of its observations
and submissions on the preliminary objections. The written
statement was filed on that date and the case became ready for
hearing in respect of the preliminary objections.

On 10, II, 12, 14 and 15 April 1961, hearings were held in the
course of which the Court heard the oral arguments and replies
of Prince Vongsamahip Jayankura, Agent, Sir Frank Soskice,
Mr. James Nevins Hyde and Me. Marcel Slusny, Advocates and
Counsel, on behalf of the Government of the Kingdom of Thailand,
and of M. Truong Cang, Agent, and Mr. Dean Acheson, M. Roger
Pinto and M. Paul Reuter, Counsel, on behalf of the Government
of Cambodia. |

In the course of the written and oral proceedings, the following
submissions were presented by the Parties:
20 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

On behalf of the Government of Cambodia, in the Application:

“The submissions of the Kingdom of Cambodia are as follows:

May it please the Court to adjudge and declare, whether the
Kingdom of Thailand appears or not:

(x) that the Kingdom of Thailand is under an obligation to
withdraw the detachments of armed forces it has stationed since
1954 in the ruins of the Temple of Preah Vihear;

(2) that the territorial sovereignty over the Temple of Preah
Vihear belongs to the Kingdom of Cambodia.”

On behalf of the same Government, in the Memorial:

“The submissions of the Kingdom of Cambodia are as follows:

May it please the Court to find in favour of the submissions
contained in its Application instituting proceedings and, in particu-
lar, to adjudge and declare, whether the Kingdom of Thailand
appears or not:

(x) that the Kingdom of Thailand is under an obligation to
withdraw the detachments of armed forces it has stationed since
1954 in the ruins of the Temple of Preah Vihear;

(2) that the territorial sovereignty over the Temple of Preah
Vihear belongs to the Kingdom of Cambodia.”’

On behalf of the Government of Thailand, in the Preliminary
Objections:

“The Government of Thailand respectfully asks the Court to
declare and pronounce that it has no jurisdiction to entertain the
Cambodian Application of the 6th October, 1959, for the following
reasons:

(A)

(i) that the Siamese declaration of the 20th September, 1929
lapsed on the dissolution of the Permanent Court of Interna-
tional Justice on the 19th April, 1946, and thereafter could not
be renewed :

(ii) that the Thai declaration of the 2oth May, 1950 purported to
do no more than renew the said declaration of the zoth Sep-
tember, 1929, and so was ineffective ab initio;

(iii) that consequently Thailand has never accepted the compulsory
jurisdiction of the International Court of Justice under
Article 36, paragraph 2, of the Statute.

(B)

(i) that neither Thailand nor Cambodia has ever been a party to
the General Act for the Pacific Settlement of International
Disputes of the 26th September, 1928;

(ii) that consequently the said Act does not constitute an agreement
of the parties to submit the said dispute to the jurisdiction of
the Court.
21 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

(C)

(i) that Cambodia has not sought to found the jurisdiction of the
Court upon the Franco-Siamese Treaty of Friendship, Com-
merce and Navigation of the 7th December, 1937;

(ii) that Cambodia is not a party to the said Treaty, nor has she
succeeded to any of the rights of France thereunder;

iii at consequen the sai reat oes not constitute an

iii) that quently th id Treaty d t itut
agreement of the parties to submit the said dispute to the
jurisdiction of the Court.”

On behalf of the Government of Cambodia, in its Written
Observations on the Preliminary Objections:

“Having regard to Articles 36 and 37 of the Statute of the Inter-
national Court of Justice;

Having regard to Articles 21 and 22 of the Franco-Siamese Treaty
of 7 December 1937, Article 2 of the Settlement Agreement of
17 November 1946 and the General Act for the Pacific Settlement
of International Disputes dated 26 September 1928;

The submissions of the Kingdom of Cambodia are as follows:

May it please the Court:

to dismiss the Preliminary Objections lodged by the Government
of Thailand;

to adjudge and declare that it has jurisdiction to decide the
dispute brought before it on 6 October 1959 by the Application of
the Government of Cambodia.”

On behalf of the Government of Thailand, Submissions read at
the hearing on 11 April 1961:

“The Government of Thailand respectfully asks the Court to
declare and pronounce that it has no jurisdiction to entertain the
Cambodian Application of the 6th October, 1959, for the following
reasons:

(A)

(i) that the Siamese declaration of the zoth September, 1929
lapsed on the dissolution of the Permanent Court of Inter-
national Justice on the roth April, 1946, and thereafter could
not be renewed;

(ii) that the Thai declaration of the 2oth May, 1950 purported to
do no more than renew the said declaration of the 2oth Sep-
tember, 1929, and so was ineffective ab initio ;

(ii) that consequently Thailand has never accepted the compul-
sory jurisdiction of the International Court of Justice under
Article 36, paragraph 2, of the Statute.

(B)

(i) that neither Thailand nor Cambodia has ever been a party to
the General Act for the Pacific Settlement of International
Disputes of the 26th September, 1928;
22 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 v 61)

(ii) that consequently the said Act does not constitute an agreement
of the parties to submit the said dispute to the jurisdiction of
the Court.

(C)

(i) that Cambodia is not a party to the Franco-Siamese Treaty of
Friendship, Commerce and Navigation of the 7th December
1937, nor has she succeeded to any of the rights of France
thereunder;

(ii) that consequently the said Treaty does not constitute an
agreement of the parties to submit the said dispute to the
jurisdiction of the Court;

(iii) that Cambodia is not a party to the Franco-Siamese Settlement
Agreement of the 17th November 1946, nor has she succeeded
to any of the rights of France thereunder;

(iv) that consequently the said Agreement does not constitute an
agreement of the parties to submit the said dispute to the
jurisdiction of the Court.”

At the end of the oral arguments, the Agent for the Government
of Cambodia, by way of submission that the Court had jurisdiction,
stated that the arguments advanced on the principal and alter-
native issues on behalf of his Government in the course of the
hearings were maintained.

*
* *

In the present case, Cambodia alleges a violation on the part

of Thailand of Cambodia’s territorial sovereignty over the region
of the Temple of Preah Vihear and its precincts. Thailand replies
by affirming that the area in question lies on the Thai side of the
common frontier between the two countries, and is under the
sovereignty of Thailand. This is a dispute about territorial sov-
ereignty; but as Thailand has raised certain objections to the
competence of the Court to hear and determine the substantive
merits of the dispute, the sole task of the Court in the present
proceedings is to consider and decide whether it has this competence
or not.
_ In invoking the jurisdiction of the Court, Cambodia has based
herself first, and principally, on the combined effect of her own
acceptance of the compulsory jurisdiction of the Court, given by
a Declaration made under paragraphs 2-4 of Article 36 of the
Court’s Statute, and dated 9 September 1957, coupled with the
Declaration made by Thailand on 20 May 1950, by which, in
Cambodia’s view, Thailand equally accepted the compulsory
jurisdiction of the Court in such a manner as to cover the present
dispute.

Secondly, Cambodia relies on the alleged effect of certain treaty
provisions entered into between France, said to be acting on

9
23 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

behalf of the former territory of French Indo-China, of which
Cambodia was then a component part; and Siam, as Thailand
was then called. Cambodia considers that she is entitled to claim
the benefit of certain of these provisions, namely provisions for
the judicial settlement of any disputes of the kind involved in
the present case, including provisions for recourse to the Inter-
national Court of Justice.

Thailand has taken exception to both these alleged bases of
jurisdiction: as regards the first, on the ground that her Declaration
of May 1950, referred to above, did not constitute a valid accept-
ance on her part of the compulsory jurisdiction of the Court; and
as regards the second, on the ground, inter alia, that even if the
treaty provisions in question would effectively have conferred
compulsory jurisdiction on the Court in a similar dispute between
Thailand and France, Cambodia as such cannot make an inde-
pendent claim to the benefit of these provisions in a dispute
which lies between Thailand and herself.

*
* *

The Court will now address itself to the first preliminary objection
of Thailand, relating to the effect of her Declaration of 20 May
1950.

It is common ground between the Parties that if this Declaration
did constitute a valid acceptance by Thailand of the compulsory
jurisdiction of the Court, then Cambodia, because of her own
Declaration of Acceptance of g September 1957, was entitled to
require the submission of the present dispute to the Court. It is
solely the validity of Thailand’s Declaration that is im issue in
the present proceedings.

*
* *

It is to be noted, before proceeding to examine the facts, that
as early as 20 September 1929 Thailand accepted the compulsory
jurisdiction of the Permanent Court in the following terms:

“On behalf of the Siamese Government, I recognize, subject to
ratification, in relation to any other Member or State which accepts
the same obligation, that is to say, on the condition of reciprocity,
the jurisdiction of the Court as compulsory #pso facto and without
any special convention, in conformity with Article 36, paragraph 2,
of the Statute of the Court, for a period of ten years, in all disputes
as to which no other means of pacific settlement is agreed upon
between the Parties.”

This Declaration was renewed for a further period by another
Declaration, dated 3 May 1940, due to expire on 6 May 1950.

10
24 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

This was, in its turn, followed by yet another Declaration, dated
20 May 1950, and deposited on 13 June 1950, which is the one
the effect of which the Court is now called upon to consider.

*
* *

Thailand’s Declaration of 20 May 1950 was framed as follows:

“I have the honour to inform you that by a declaration dated
September 20, 1929, His Majesty’s Government had accepted the
compulsory jurisdiction of the Permanent Court of International
Justice in conformity with Article 36, paragraph 2, of the Statute
for a period of ten years and on condition of reciprocity. That
declaration has been renewed on May 3, 1940, for another period of
ten years.

In accordance with the provisions of Article 36, paragraph 4, of
the Statute of the International Court of Justice, [ have now the
honour to inform you that His Majesty’s Government hereby renew
the declaration above mentioned for a further period of ten years
as from May 3, 1950, with the limits and subject to the same
conditions and reservations as set forth in the first declaration of
Sept. 20, 1920.”

On the face of it, this Declaration appears to be a straightforward
renewal, for another period of years, of a previous acceptance
of the Court’s compulsory jurisdiction, in a manner commonly
adopted by States when they wish simply to prolong an existing
obligation or renew a previous obligation without having to set
out again in detail the precise terms of it—as to which, accordingly.
they content themselves with a reference to previous instruments
containing those terms. The latter then become incorporated in
the new instrument as an integral part of it.

This is the construction which undoubtedly would normally
be placed on such an instrument as Thailand’s Declaration of
May 1950. Thailand points out, however, that since she made
her Declaration of 1950, there has intervened the decision of the
Court of 26 May 1959, in the case of the Aerial Incident of July
27th, 1955 (Israel v. Bulgaria). Thailand contends that this decision
revealed that the assumptions on which the language of her 1950
Declaration was based were incorrect and that her Declaration,
in the light of that decision, was meaningless. Thailand in no way
denies that by this Declaration she fully intended to accept, and
equally fully believed she was accepting, the compulsory jurisdic-
tion of the present Court. But, according to her present argument,
that intention, however definitely it may have existed, and did
exist, in the mind of Thailand, was never carried out as a matter of
objective fact, because Thailand, though all unwittingly, drafted
her Declaration of May 1950 in terms which subsequent events—

Ir
25 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

in particular the Court’s decision in the Israel v. Bulgaria case—
revealed as having been ineffectual to achieve Thailand’s purpose.

*
* *

In order to appreciate the precise implications of Thailand’s
first preliminary objection, it is necessary at this point to refer
to Article 36, paragraph 5, of the Statute of the Court, which
reads as follows:

“Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present Statute,
to be acceptances of the compulsory jurisdiction of the International
Court of Justice for the period which they still have to run and in
accordance with their terms.”

The intention of this paragraph was to provide a means whereby,
within certain limits, existing declarations in acceptance of the
compulsory jurisdiction of the Permanent Court of International
Justice would become 1pso jure transformed into acceptances of
the compulsory jurisdiction of the present Court as respects States
parties to the Statute of the Court, without such States having
to make any new declarations specifically in relation to the present
Court. In the Jsrael v. Bulgaria case, however, the Court, inter-
preting paragraph 5 of Article 36, came to the conclusion that
it did not apply indiscriminately to all States which, having
accepted the compulsory jurisdiction of the former Permanent
Court, might at any subsequent date become parties to the Statute
of the Court, but only to such of those States as were original
parties. The Court furthermore came to the conclusion that on
19 April 1946, date when the Permanent Court ceased to exist,
all declarations in acceptance of the compulsory jurisdiction of
the Permanent Court which had not already, by then, been
“transformed” by the operation of Article 36, paragraph 5, into
acceptances of the compulsory jurisdiction of the present Court,
lapsed and ceased to be in force, since they would, as from then,
have related to a tribunal—the former Permanent Court—which
no longer existed. Consequently, so the Court found, all declarations
not having been thus transformed by 19 April 1946 ceased as
from that date to be susceptible of the process of transformation
ipso jure provided for by Article 36, paragraph 5.

It is not necessary for present purposes either to examine or
to recapitulate the reasoning on which these conclusions were
based—reasoning fully set out in the Court’s decision in the
Israel v. Bulgaria case. Suffice it to say that, on the basis of this
reasoning, the Court held that Bulgaria not having, through its

12
26 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

admission to the United Nations, become a party to the Statute
until 14 December 1955, the Declaration which she had made
in 1920 accepting the compulsory jurisdiction of the former Per-
manent Court, for an indeterminate period of years, must be
regarded as having lapsed on 19 April 1946, and as not having
been transformed by the operation of Article 36, paragraph 5,
into an acceptance relative to the present Court. Bulgaria having
never at any time made a declaration independently accepting
the compulsory jurisdiction of the Court, it followed, on this
view, that she was not bound by that jurisdiction.

In the present case, Thailand’s first preliminary objection pro-
ceeds on the basis that her position is substantially the same as that
of Bulgaria. Thailand equally did not, through admission to the
United Nations, become a party to the Statute until after the
demise of the former Permanent Court on 1g April 1946—namely
not until 16 December 1946. However, the demise of the Permanent
Court some eight months earlier would, on the basis of the Court’s
conclusion in the Israel v. Bulgaria case, have caused the lapse of
Thailand’s Declaration of 3 May 1940 by which she had renewed
for another Io years her original acceptance, given in 1929, of the
compulsory jurisdiction of the Permanent Court. If this 1940
Declaration had thus lapsed, it followed that Article 36, paragraph
5, which related only to declarations “‘still in force”, would have no
application to Thailand’s Declaration of 1940. Accordingly, this
Declaration would not have been transformed into an acceptance
of the compulsory jurisdiction of the present Court by reason of
the fact that Thailand became a Member of the United Nations,
and thus a party to the Statute, on 16 December 1946. Conse-
quently, according to the view which Thailand puts forward, when
Thailand made her Declaration of May 1950 purporting to renew
for another 10 years her original Declaration of 1929, as itself
renewed in 1940, all she actually would have achieved was a neces-
sarily abortive and inoperative renewal of a declaration which
had never had any effect except as an acceptance of the compulsory
jurisdiction of a tribunal that no longer existed.

The language of renewal of a previous declaration which Thailand
employed in her Declaration of 1950 was entirely natural on the
assumption that Thailand’s previous declaration relative to the
Permanent Court had, by the operation of Article 36, paragraph 5,
been transformed into an acceptance relative to the present Court
when Thailand was admitted as a Member of the United Nations in
December 1946. On that basis, she would, in 1950, simply have
been renewing a declaration which was itself—or rather had in 1946
become—an acceptance of the compulsory jurisdiction of the
present Court. But according to the argument Thailand has now
put forward, the decision of the Court in 1959 showed that this was

13
27 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

not in fact the legal position: in 1950, all that existed, or rather
remained, was an instrument (the Declaration of 1940) accepting
the compulsory jurisdiction of a defunct tribunal. This was the
instrument which Thailand ‘‘renewed’’ in 1950; but as this instru-
ment related to a non-existent institution its ‘‘renewal” was neces-
sarily devoid of legal effect.

An essential part of the reasoning by which Thailand has sup-
ported her contention is that the intentions she may have had in
making her Declaration of May 1950 became wholly irrelevant
—0r rather became insufficient in themselves. However much those
intentions are known—and indeed admitted by Thailand herself—
to have existed, they were not, Thailand contends, carried out as
a matter of objective fact. According to Thailand, her position
would be similar to that of a man who desires to make certain
testamentary dispositions, and fully intends them; nevertheless,
he will not achieve his object, as a matter of law, if he fails to
observe the forms and requirements prescribed by the applicable
law for the making of testamentary dispositions.

*
* *

The first preliminary objection as advanced. by Thailand is
evidently based wholly on the alleged effect on Thailand’s 1950
Declaration of the conclusion reached by the Cqurt in its decision
in the Israel v. Bulgaria case as to the correct sphere of application
of Article 36, paragraph 5, of the Statute.

The Court does not share the view that this decision has the
consequences concerning the effect of Thailand’s 1950 Declaration
which Thailand now claims.

The Court’s decision in the Israel v. Bulgaria case was of course
concerned with the particular question of Bulgaria’s position in
relation to the Court and was in any event, by reason of Article 59
of the Statute, only binding, gua decision, as between the parties
to that case. It cannot therefore, as such, have had the effect of
invalidating Thailand’s 1950 Declaration. Considered however as
a statement of what the Court regarded as the correct legal position,
it appears that the sole question, relevant in the present context,
with which the Court was concerned in the Israel v. Bulgaria case
was the effect—or more accurately the scope—of Article 36,
paragraph 5. Now that provision, as has been explained above,
itself related solely to the cases in which declarations accepting
the compulsory jurisdiction of the former Permanent Court would
be deemed to be transformed into acceptances of the compulsory
jurisdiction of the present Court, without any new or specific act
on the part of the declarant State other than the act of having
become a party to the Statute. It was consequently this process

14
28 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

of transformation #pso jure, and the limits to which it was subject,
that the Court was concerned with in the Israel v. Bulgaria case.
The Court was not concerned with the question whether it might
be possible to effect a similar transformation by other means falling
outside Article 36, paragraph 5. Thus, when the Court found that
in the case of States becoming parties to the Statute after the demise
of the Permanent Court, no transformation under that particular
provision could take place, it did not mean thereby to imply that
no transformation could take place at all.

As regards Bulgaria, her Declaration of 1921 had, according to
the Court’s view, lapsed in 1946, and had not been transformed;
and Bulgaria had neither made any independent request that her
1921 Declaration should be considered as relating to the present
Court, nor taken any other step which could be regarded as con-
stituting an acceptance of the Court’s compulsory jurisdiction.
In these circumstances, the Court could only conclude that Bulgaria
was not obliged to submit to the jurisdicton of the Court.

From the above, it would follow that if Thailand’s 1940 Declara-
tion was not thus transformed 2pso jure in the light of the Court’s
decision, by the operation of Article 36, paragraph 5, there would
still remain the question whether that Declaration was so trans-
formed in some other manner or whether, irrespective of any trans-
formation of her 1940 Declaration as such, Thailand could be held
to have independently accepted the compulsory jurisdiction of the
Court. It is clear that the fact that Thailand, by a new and voluntary
act, made her Declaration of May 1950, placed her in a different
position from Bulgaria which had never taken any new step at
all subsequent to her admission to the United Nations.

*
* *

Such is the question —a question in no way governed by the posi-
tion in relation to Article 36, paragraph 5—to which the Court
must now address itself; but before doing so, it is necessary to
determine exactly what the situation was that had been reached
by 20 May 1950, the date of Thailand’s Declaration.

Thailand did not, either on joining the United Nations, or at
any time before 6 May 1950, when Thailand’s 1940 Declaration
was in any case due to expire according to its own terms, address
any communication to the Secretary-General regarding her 1940
Declaration. Consequently, the position in May 1950 was that
Thailand’s 1940 Declaration had, on the basis of the Court’s 1959
decision, never been transformed into an acceptance of the com-
pulsory jurisdiction of the present Court by the operation of
Article 36, paragraph 5; and equally had not up to that date
(6 May 1950) been transformed by Thailand’s own independent
act. Furthermore, by 20 May 1950, the 1940 Declaration never

15
29 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

could thenceforth, as such, be so transformed, because, according
to its own terms, it had expired two weeks earlier, on 6 May.

Thailand had thus either never been bound since 1946, or had,
on any view, ceased to be bound as from 6 May 1950. Thailand
was therefore at this point (20 May 1950) entirely unfettered
and not bound by the compulsory jurisdiction of this Court. She
was completely free at that point either to accept or else not to
accept that jurisdiction for the future. In this situation, she pro-
ceeded to do what Bulgaria never did, namely to address to the
Secretary-General of the United Nations a communication em-
bodying her Declaration of 20 May. By this she at least purported
to accept, and clearly intended to accept, the compulsory jurisdic-
tion of the present Court. The question is—and it is really the
sole pertinent question in this case—did she effectually carry out
her purpose?

This Deciaration of May 1950 was a new and independent instru-
ment and has to be dealt with as such. It was not, and could not
have been, made under paragraph 5 of Article 36 of the Statute.
In the first place, this paragraph contained no provision for the
making of specific declarations by States: where it operated, it
operated ¢pso jure without any such specific declaration—that
indeed was its whole point. In the second place, paragraph 5 was
so worded as only to preserve the declarations concerned for the
duration of the unexpired portion of the terms for which they
still had to run; and Thailand’s previous Declaration of 1940,
whether or not kept alive by Articie 36, paragraph 5, was in any
case due to expire on 6 May 1950, by its own terms. The operation
of Articie 36, paragraph 5, was therefore, on any view, wholly
exhausted by that date so far as Thailand was concerned. It
follows that Thailand’s Declaration of 20 May 1950 was not a
declaration which Thailand either did make, or ever could have
made, under Article 36, paragraph 5, even if she had wanted to;
and from this it follows that the 1950 Declaration must have
been one which Thailand was making under paragraphs 2-4 of
that Articie, and in at least purported or attempted acceptance
of the compulsory jurisdiction of the present Court, which is the
only tribunal contemplated by those paragraphs.

In answering the question whether this acceptance was an
effectual one, it must be borne in mind that although, for the
reasons given above, the view taken in the Court’s decision in the
Israel v. Bulgaria case as to the scope of Article 36, paragraph 5,
of the Statute does not, on any a priori basis, exclude the validity
of Thailand’s 1950 Declaration, this decision has nevertheless to
be taken into account in determining what the effect of that
Declaration was; for the decision is invoked by Thailand to argue
that her previous (1940) Declaration, which the 1950 Declaration
renewed, was an “‘untransformed”’ one, because the 1940 Declaration

16
30 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

had become lacking in an object: it was therefore incapable of
renewal or else related to the compulsory jurisdiction of the old
and defunct Court, not of the existing Court.

The Court is unable to share this view of the effect of Thailand’s
1950 Declaration. But before stating why, it is desirable to dispose
of certain other points raised in the course of the proceedings.

*
* *

In the first place, there was a good deal of discussion as to
whether a lapsed instrument can be renewed, or rather revived;
and distinctions were drawn between, on the one hand, the pro-
longation of an instrument in force, and, on the other hand, the
renewal or revival of lapsed or spent instruments.

The Court considers that much of this discussion had little
relevance to the particular circumistances of this case. The real
question in the present case is a different one. Ht is not: could
Thailand by her 1950 Declaration renew or revive her 1929 and
1940 Declarations despite the fact that these had lapsed and
were no longer in force; the question is, what was the effect of
her Declaration of 1950: did she thereby merely revive obliga-
tions that could no longer operate because they related to a no
longer existent object, or were they revived in such a way as to
relate to the present Court? This is the question that the present
Judgment is directed to determining.

Next, there was also discussion as to the question of error and
its possible effects. Thailand’s position, it might be said, is that
in 1950 she had a mistaken view of the status of her 1940 Declara-
tion, and for that reason she used in her Declaration of 1950
language which the decision of the Court in the Israel v. Bulgaria
case showed to be inadequate to achieve the purpose for which that
Declaration was made. Any error of this kind would evidently have
been an error of law, but in any event the Court does not consider
that the issue in the present case is really one of error. Furthermore,
the principal juridical relevance of error, where it exists, is that
it may affect the reality of the consent supposed to have been
given. The Court cannot however see in the present case any factor
which could, as it were ex post and retroactively, impair the reality
of the consent Thailand admits and affirms she fully intended to
give in 1950. There was in any case a real consent in 1950, whether
or not it was embodied in a legally effective instrument—and it
could not have been consent to the compulsory jurisdiction of the
Permanent Court, which Thailand well knew no longer existed.

17
31 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

The real case for Thailand lies in the contention that her 1950
Declaration was vitiated despite her clear intentions, because,
as she maintains, this Declaration was expressed in terms which
rendered it legally ineffective for want of an object. Evidently
no defect could be more fundamental than to renew a declaration
lacking in an object. But to reach an immediate conclusion on
that basis would be gratuitous, for in the light of the reasoning
that has been set out above, the effect of the 1950 Declaration
can only be established by an independent examination of that
Declaration, considered as a whole and in the light of its known
purpose.

Before undertaking this examination, which really constitutes
the crux of the matter, the Court wishes to refer to the argument
presented on behalf of Thailand that, in legal transactions, just as
the deed without the intent is not enough, so equally the will with-
out the deed does not suffice to constitute a valid legal transaction.
It should be noted here that there was certainly no will on Thai-
land’s part in 1950 to accept the compulsory jurisdiction of the
former Permanent Court. This does not of course by itself mean
that the 1950 Declaration constituted an acceptance in relation
to the present Court. Nevertheless the sheer impossibility that,
in 1950, any acceptance could either have been intended, or could
in fact have operated, as an acceptance relative to the Permanent
Court is a factor to be borne in mind in considering the effect of
the 1950 Declaration.

As regards the question of forms and formalities, as distinct
from intentions, the Court considers that, to cite examples drawn
from the field of private law, there are cases where, for the pro-
tection of the interested parties, or for reasons of public policy, or on
other grounds, the law prescribes as mandatory certain formalities
which, hence, become essential for the validity of certain transactions,
such as for instance testamentary dispositions ; and another example,
amongst many possible ones, would be that of a marriage cere-
mony. But the position in the cases just mentioned (wills, marriage,
etc.) arises because of the existence in those cases of mandatory
requirements of law as to forms and formalities. Where, on the
other hand, as is generally the case in international law, which places
the principal emphasis on the intentions of the parties, the law
prescribes no particular form, parties are free to choose what form
they please provided their intention clearly results from it.

It is this last position which obtains in the case of acceptances
of the compulsory jurisdiction of the Court. The only fermality
required is the deposit of the acceptance with the Secretary-
General of the United Nations wider paragraph 4 of Article 36
of the Siatute. This formality was accomplished by Thailand.
For the rest—as regards form—paragraph 2 of Article 36 merely
provides that States parties to the Statute ‘‘may at any time declare
18
32 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

that they recognize as compulsory ... the jurisdiction of the Court”,
etc. The precise form and language in which they do this is left
to them, and there is no suggestion that any particular form is
required, or that any declarations not in such form will be invalid.
No doubt custom and tradition have brought it about that a cer-
tain pattern of terminology is normally, as a matter of fact and
convenience, employed by countries accepting the compulsory
jurisdiction of the Court; but there is nothing mandatory about
the employment of this language. Nor is there any obligation,
notwithstanding paragraphs 2 and 3 of Article 36, to mention
such matters as periods of duration, conditions or reservations,
and there are acceptances which have in one or more, or even in
all, of these respects maintained silence.

Such being, according to the view taken by the Court, the posi-
tion in respect of the form of declarations accepting its compul-
sory jurisdiction, the sole relevant question is whether the language
employed in any given declaration does reveal a clear intention,
in the terms of paragraph 2 of Article 36 of the Statute, to ‘“‘recog-
nize as compulsory 2pso facto and without special agreement,
in relation to any other State accepting the same obligation, the
jurisdiction of the Court in all legal disputes” concerning the cate-
gories of questions enumerated in that paragraph.

*
* *

In the light of all the foregoing considerations, the Court con-
siders that it must interpret Thailand’s 1950 Declaration on its
own merits, and without any preconceptions of an a@ priori kind,
in order to determine what is its real meaning and effect if that
Declaration is read as a whole and in the light of its known purpose,
which has never been in doubt.

In so doing, the Court must apply its normal canons of inter-
pretation, the first of which, according to the established juris-
prudence of the Court, is that words are to be interpreted accord-
ing to their natural and ordinary meaning in the context in
which they occur. If the 1950 Declaration is considered in this
way, it can have no other sense or meaning than as an acceptance
of the compulsory jurisdiction of the present Court, for there
was no other Court to which it can have related. Thailand’s 1950
Declaration, by the mere fact of being embodied in a communi-
cation addressed to the Secretary-General of the United Nations,
affords clear evidence of acceptance relative to the present Court,
since this was the only Court in relation to which a communication
so addressed could have had any significance.

Moreover, the Court has held in the Anglo-Iranian Oil Co.
case (I.C.J. Reports 1952, p. 104) that the principle of the ordinary
meaning does not entail that words and phrases are always to be
interpreted in a purely literal way; and the Permanent Court, in the

19
33 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

case of the Polish Postal Service in Danzig (P.C.1.J., Series B, No. 11,
p. 39), held that this principle did not apply where it would lead
to “something unreasonable or absurd’’, The case of a contradic-
tion would clearly come under that head. Now, if, on a literal
reading, part of Thailand’s 1950 Declaration had, ex-post and
because of the decision of the Court in the Israel v. Bulgaria case,
to be considered as a purported acceptance of the jurisdiction of.
a defunct Court, this would be in clear contradiction to the refe-
rence in another part of the Declaration to Article 36, paragraph 4,
of the Statute (and via that paragraph to paragraphs 2 and 3),
which cleariy evidenced acceptance of the jurisdiction of the pre-
sent Court, and in contradiction also with the fact that a commu-
nication under paragraph 4 could only relate to the present Court.

This reference to Article 36, paragraph 4, was not merely pro-
cedural, as has been contended on behalf of Thailand. It was of
course procedural in so far as it was in obedience to the requirement
that such a declaration should be addressed to the Secretary-
General of the United Nations. But the Secretary-General was
to be addressed because, as the language of paragraph 4 (“Such
declarations’’) indicates, the declarations referred to in paragraph 4
are the same declarations as are specified in paragraphs 2 and 3,
namely declarations accepting the compulsory jurisdiction of the
present Court, which is the principal judicial organ of the United
Nations. Thailand, which was fully aware of the non-existence of
the former Permanent Court, could have had no other purpose
in addressing the Secretary-Geñeral under paragraph 4 than to
recognize the compulsory jurisdiction of the present Court under
paragraph 2—nor does she pretend otherwise.

On 20 May 1950, Thailand knew that her Declaration of 1940
had expired in accordance with its terms and that in so far as
this was material, Article 36, paragraph 5, had, on any interpreta-
tion, exhausted itself. Thailand knew she was free of any obliga-
tion to submit to the Court’s jurisdiction except by virtue of a
new and independent, voluntary, act of submission on her part.
The only way in which she could, at that stage, take action
under Article 36. was pursuant to paragraph 2 thereof; and the
declaration which she then made was pursuant to that paragraph,
as is clearly shown by the terms of the Declaration itself in its.
reference to Article 36, paragraph 4, and wa that to paragraph 2.

If, however, there should appear to be a contradiction between,
on the one hand, this reference to paragraph 4 of Article 36, and
via that to paragraph 2, indicating acceptance of the compul-
sory jurisdiction of the present Court; and, on the other hand,
the references to the ‘‘untransformed” Declarations of 192y and

20
34 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

1940, from which an apparent acceptance of the jurisdiction of
the former Permanent Court might be inferred—that is to say
a nullity—then, according to a long-established jurisprudence, the
Court becomes entitled to go outside the terms of the Declaration
in order to resolve this contradiction and, inter alia, can have
regard to other relevant circumstances; and when these circum-
stances are considered, there cannot remain any doubt as to
what meaning and effect should be attributed to Thailand’s Decla-
ration. In this connection, it is scarcely necessary to do more
than refer to the history of Thailand’s consistent attitude to the
compulsory jurisdiction, first of the Permanent Court, and later
of the present Court, as set out in an earlier paragraph of this
Judgment. To ignore this would indeed be to honour the letter
rather than the spirit; but the Court considers that, for the reasons
which have been indicated, even the letter does not bear out the
view Thailand seeks to maintain concerning the effect of her
1950 Declaration.

To sum up, when a country has evinced as clearly as Thailand
did in 1950, and indeed by its consistent attitude over many
years, an intention to submit itself to the compulsory jurisdiction
of what constituted at the time the principal international tri-
bunal, the Court could not accept the plea that this intention had
been defeated and nullified by some defect not involving any
flaw in the consent given, unless it could be shown that this defect
was so fundamental that it vitiated the instrument by failing to
conform to some mandatory legal requirement. The Court does
not consider that this was the case and it is the duty of the Court
not to allow the clear purpose of a party to be defeated by reason
of possible defects which, in the general context, in no way af-
fected the substance of the matter, and did not cause the instru-
ment to run counter to any mandatory requirement of law.

The Court therefore considers that the reference in the Declaration
of 1950 to paragraph 4 of Article 36 of theStatute gave the Decla-
ration, for reasons already given, the character of an acceptance
under paragraph 2 of that Article. Such an acceptance could only
have been an acceptance in relation to the present Court. The
remainder of the Declaration must be construed in the light of
that cardinal fact, and in the general context of the Declaration;
and the reference to the 1929 and 1940 Declarations must, as was
clearly intended, be regarded simply as being a convenient method
of indicating, without stating them in terms, what were the con-
ditions upon which the acceptance was made.

21
35 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 Vv 61)

*
* *

Since the above conclusion is sufficient in itself to found the
Court’s jurisdiction, and the issue of jurisdiction is the only one
which the Court has to determine at this stage of the case, it
becomes unnecessary to proceed to a consideration of the second
basis of jurisdiction invoked by Cambodia, and Thailand’s objection
to that basis of jurisdiction.

For these reasons,

THE Court,

unanimously,

rejects the first preliminary objection of Thailand, and finds that
it has jurisdiction to adjudicate upon the dispute submitted to it
on 6 October 1959 by the Application of Cambodia.

Done in English and in French, the English text being authori-
tative, at the Peace Palace, The Hague, this twenty-sixth day of
May, one thousand nine hundred and sixty-one, in three copies,
one of which will be placed in the archives of the Court and the
others transmitted to the Government of the Kingdom of Cambodia
and to the Government of the Kingdom of Thailand, respectively.

(Signed) B. WINIARSKI,
President.

(Signed) GARNIER-COIGNET,
Registrar.

Vice-President ALFARO makes the following Declaration:

The fact that in the present case Thailand has based her first
preliminary objection to the jurisdiction of the Court on the
conclusions of the Judgment rendered in the case of the Aerzal
Incident of July 27th, 1955 (Israel v. Bulgaria) establishes a close
connection between that case and the present case, and it may be
open to doubt whether concurrence in the present Judgment
implies agreement with the conclusions of the Court in the above-
mentioned case. For this reason I consider it necessary to declare
that much to my regret I find myself unable to agree with those
conclusions, but even on the assumption that I agreed with them,

22
36 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

it is my opinion that the conclusions of the Court in the Israel v.
Bulgaria case concerning the scope and effect of paragraph 5 of
Article 36 of the Statute are not applicable to the case now decided,
for the abundant reasons stated in the present Judgment.

Judge WELLINGTON Koo makes the following Declaration:

Since some of the grounds given in the Judgment relate to the
decision of the Court in the case of the Aerial Incident-of July 27th,
1955 (Israel v. Bulgaria), Preliminary Objections, I desire to say
that while I concur in the conclusion of the Court in the present
case and generally in the reasoning which leads to it, I do not
mean thereby to imply that I now concur or acquiesce in that
decision but that, on the contrary, I continue to hold the views
and the conclusion stated in the Joint Dissenting Opinion appended
to that decision.

Indeed, I consider that on the basis of that Opinion Thailand’s
1940 Declaration accepting the compulsory jurisdiction of the
Permanent Court must be deemed to have been transformed, as
had also admittedly been intended by Thailand, when she became
a Member of the United Nations and therefore a party to the
Statute on 16 December 1946, by operation of Article 36, para-
graph 5, of the Statute, into an acceptance in relation to the
present Court; and this fact constitutes an additional and simpler
reason to meet Thailand’s principal argument in support of her first
objection.

This is clear, although it is equally true that since the circum-
stances of the two cases are essentially different, neither the fact,
based on the said Opinion, that the said 1940 Declaration had been
so transformed prior to its own terminal date, 6 May 1950, nor
the fact, based upon the said 1959 decision of the Court, that it
had lapsed on 1g April 1946 when the Permanent Court was
dissolved, bears any determining legal effect on the only crucial
question at issue in the present case, namely, the validity of
Thailand’s Declaration of 20 May 1950.

Judge Sir Gerald FITZMAURICE and Judge Tanaka make the
following Joint Declaration:

Although we are in complete agreement with the substantive
conclusion of the Court in this case and with the reasoning on
which it is based, we have an additional and, for us, a more im-
mediate reason for rejecting the first preliminary objection of
Thailand.

This preliminary objection is based on the conclusion concerning
the effect of paragraph 5 of Article 36 of the Statute which the

23
37 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

Court reached in its decision of 26 May 1959, given in the case
of the Aerial Incident of July 27th, 1955 " Israel v. Bulgaria). The
objection necessarily assumes the correctness of that conclusion;
for it is only on that basis that it is possible to claim, as Thailand
has sought to do, that what she purported to renew, or rather
revive, by her Declaration of 20 May 1950, was an acceptance, not
of the compulsory jurisdiction of the present Court, but of that of
the former Permanent Court, and therefore, in view of the non-
existence of that Court in 1950, devoid of any object, and in-
capable, as such, of renewal or revival. But it is also clear that
except on the basis of that conclusion, the objection would, to use
a serviceable colloquialism, have been ‘a complete non-starter’’,
and could never have been formulated at all.

Since, therefore, the objection necessarily presupposes the cor-
rectness of the conclusion reached in the Israel v. Bulgaria case,
the view that this conclusion was in fact incorrect would, for anyone
holding that view, furnish a further reason for rejecting the objec-
tion, and a much more immediate one than any of those contained
in the present Judgment.

This is precisely our position since, to our regret, we are unable
to agree with the conclusion which the Court reached in the Israel
v. Bulgaria case as to the effect of Article 36, paragraph 5, of the
Statute. We need not give our reasons for this, for they are sub-
stantially the same as those set out in the Joint Dissenting Opinion
of Judges Sir Hersch Lauterpacht and Sir Percy Spender, and of
Judge Wellington Koo. Furthermore, it is not our purpose to call
in question or attempt to reopen the decision in that case.

However, as we do net agree with it, the correct position, for us,
in regard to the effect of Article 36, paragraph 5, as it related to
Thailand’s previous Declaration of May 1940, is that on the demise
of the Permanent Court in April 1946, this Declaration which,
according to its own terms, still had about four years to run,
became dormant (but not extinct) and then, on Thailand becoming
a Member of the United Nations in December 1g46, was reactivated
by the operation of Article 36, paragraph 5, as an acceptance of
the compulsory jurisdiction of the present Court.

For us, therefore, Thailand’s 1950 Declaration was, as it was
intended to be, a perfectly straightforward and normal renewal of
a Declaration (that of 1940) which had already been ‘‘transformed”
into—and had acquired the status of—an acceptance in relation
to the present Court, and which had wholly ceased to relate to the
former Permanent Court, not merely because of the demise of that
Court, but precisely because the Declaration had (by virtue of
Article 36, paragraph 5) been transformed into an acceptance of
the compulsory jurisdiction of the present Court. On that basis,

24
38 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 v 61)

the status and validity of the Declaration of May 1950 could not
be open to question, and this we believe is the true position.

We have thought it necessary to make our attitude clear in this
respect ; for otherwise, concurrence in the present Judgment of the
Court might be thought to imply agreement with the decision of
26 May 1959. Furthermore, anyone who disagrees with that decision
must necessarily reject Thailand’s first preliminary objection a
fortiori on that ground alone. This however in no way affects our
view that the first preliminary objection of Thailand must in any
case be rejected, for the reasons given in the present Judgment.

As regards the second preliminary objection of Thailand—whilst
we are fully in agreement with the view expressed by Sir Hersch
Lauterpacht in the South West Africa—V oting Procedure case (I.C.].
Reports 1955, at pp. 90-93) to the effect that the Court ought not
to refrain from pronouncing on issues that a party has argued as
central to its case, merely on the ground that these are not essential
to the substantive decision of the Court—yet we feel that this view
is scarcely applicable to issues of jurisdiction (nor did Sir Hersch
imply otherwise). In the present case, Thailand’s second preliminary
objection was of course fully argued by the Parties. But once the
Court, by rejecting the first preliminary objection, has found that
it has jurisdiction to go into the merits of the dispute (this being
the sole relevant issue at this stage of the case), the matter is,
strictly, concluded, and a finding, whether for or against Thailand,
on her second preliminary objection, could add nothing material
to the conclusion, already arrived at, that the Court is competent.
We therefore agree that the Court is not called upon in the cir-
cumstances to pronounce on the second preliminary objection.

Judge Sir Percy SPENDER appends to the Judgment of the
Court a statement of his Separate Opinion.

Judge MORELLI appends to the Judgment of the Court a state-
ment of his Separate Opinion.

(Initialled) B. W.
(Initialled) G.-C.

25


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                                 20 JANUARY 2009

                                     ORDER

           INTERNATIONAL COURT OF JUSTICE

                             YEAR 2009                                           2009
                                                                              20 January
                                                                              General List
                           20 January 2009                                     No. 142

APPLICATION OF THE INTERIM ACCORD
       OF 13 SEPTEMBER 1995
 (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
                 v. GREECE)

                               ORDER

esent : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges
        RANJEVA, SHI, KOROMA, BUERGENTHAL, OWADA, SIMMA,
        TOMKA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA ;
        Registrar COUVREUR.

The International Court of Justice,
Composed as above,
Having regard to Article 48 of the Statute of the Court and to Articles
 44, 45, paragraph 1, and 48 of the Rules of Court,
Having regard to the Application filed in the Registry of the Court on
November 2008, whereby the former Yugoslav Republic of Macedo-
 instituted proceedings against the Hellenic Republic
  “to protect its rights under the Interim Accord [of 13 September
  1995] and to ensure that it is allowed to exercise its rights as an inde-
  pendent State acting in accordance with international law, including
  the right to pursue membership of relevant international organisa-
  tions [under Article 11, paragraph 1, of that Accord]” ;

Whereas on 17 November 2008 a certified copy of the Application was
nsmitted to the Hellenic Republic ;

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Whereas the former Yugoslav Republic of Macedonia has appointed
E. Mr. Antonio Milošoski as Agent and H.E. Mr. Nikola Dimitrov as
 -Agent ; and whereas the Hellenic Republic has appointed H.E. Mr.
orges Savvaides, H.E. Mr. Constantin-John A. Rallis and Ms Maria
 alian as Agents ;
Whereas, at a meeting held by the President of the Court with the rep-
entatives of the Parties on 19 January 2009, H.E. Mr. Nikola Dim-
ov, Co-Agent of the former Yugoslav Republic of Macedonia, refer-
g in particular to the legal nature of the case and the absence of a need
  factual or historical research, requested a period of four or five
 nths from the date of the Order for the preparation of the Memorial
his Government ; and whereas H.E. Mr. Georges Savvaides, Agent of
  Hellenic Republic, observed, inter alia, that his Government was
able at that stage to distinguish the legal from the other questions that
uld arise in the case, and therefore wished to have the necessary time at
 disposal for the preparation of the Counter-Memorial, which it esti-
 ted at 12 months ;

Taking into account the views of the Parties,
Fixes the following time-limits for the filing of the written pleadings :

20 July 2009 for the Memorial of the former Yugoslav Republic of
 cedonia ;
20 January 2010 for the Counter-Memorial of the Hellenic Republic ;
d
Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
 Peace Palace, The Hague, this twentieth day of January, two thou-
 d and nine, in three copies, one of which will be placed in the archives
 he Court and the others transmitted to the Government of the former
goslav Republic of Macedonia and the Government of the Hellenic
public, respectively.

                                        (Signed) Rosalyn HIGGINS,
                                                    President.
                                       (Signed) Philippe COUVREUR,
                                                     Registrar.

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