Abstract
This paper calls attention to a little-noticed phenomenon about the Thai government’s increasing involvement in international adjudication over the last two decades. For the first time, it has participated in the advisory proceedings before the ITLOS, and made oral statements in the advisory proceedings before the ICJ. It has faced the first treaty-based arbitration by a German investor. There has also been an attempt to initiate the proceedings at the International Criminal Court against Thai officials. All of these parallel the government’s extensive participation in the dispute settlement mechanism of the WTO. What accounts for such developments? The paper argues that Thailand’s constantly increasing engagement with international adjudication should be understood as part of the judicialisation of international relations. Specifically, it is shaped by four main conditions. First, the Thai government has cautiously yet constantly expanded its acceptance of jurisdiction of courts and tribunals. Second, the number of potential claimants has exponentially increased. Third, the composition of the international litigator communities has changed, resulting in the significant increase in the number of lawyers willing to pursue new cases. Fourth, Thai government officials are learning to strategically make themselves more visible in the litigator communities.
Highlights
The Thailand’s Litigation Strategy (Pimluk 2007)] (Thai) government has been increasingly involved in international adjudication in many fora in the course of the last two decades
It has fully participated in the advisory proceedings before the International Tribunal for the Law of the Sea (ITLOS) in 20151 and appeared in the oral phase in the advisory proceedings before the International Court of Justice (ICJ) in 2018.2 for the first time, it was brought to arbitration under an investment treaty by a German company in 2006,3 which was followed by other similar claims.[4]
There was an attempt to initiate proceedings at the International Criminal Court (ICC) as a result of the massacre in downtown Bangkok in 2010.5 All of these events parallel the widelydiscussed case concerning the interpretation of the judgment in the Preah Vihear case before the ICJ, 6 and the government’s extensive engagement with the dispute settlement mechanism of the World Trade Organization (WTO) as a claimant, respondent, and third party, which exceeds 100 cases
Summary
The Thai government has been increasingly involved in international adjudication in many fora in the course of the last two decades. The jurisdiction ratione personae of the courts and tribunals to which the government has given its consent covers non-state actors, which has resulted in an exponential increase in potential claimants bringing cases against the state in international adjudication. Thai government officials, for their part, are learning to strategically make themselves more visible in the international litigator communities With all of these four conditions present, the further involvement of the Thai government in international adjudication can be expected. I exclude proceedings before domestic courts in foreign states which involve the Thai government, even though these have increasingly gained practical significance and scholarly interest in many types of cases, such as state immunity, universal criminal jurisdiction, and enforcement of arbitral awards. I leave out other forms of engagement, such as the nomination of adjudicators, reform projects, etc., even though they are worthy of further exploration in their own right.[10]
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