Identity Beyond Borders: International Cultural Heritage Law and the Temple of Preah Vihear Dispute
by Lucas Lixinski, Fernando Lusa Bordin and Maite de Souza Schmitz 30
and protected cultural heritage was a matter of dispute. This dispute was best articulated in the 1985 article “Thinking about the Elgin Marbles” by John Merryman, a professor at Stanford Uni- versity. Professor Merryman advocated for what was then perceived as a radical move towards the internationalization of cultural heritage law, as at the time heritage conservation was considered a purely domestic matter. Since then, the field of cultural heritage law has gone global, with numer- ous international conventions now regulating and applying to both artistic objects and intangible as- pects of culture. As such, a 2011 article in the Eu- ropean Journal of International Law by renowned law professor Francesco Francioni asserts that international concern over cultural heritage is a given. Moreover, because of the important role of cultural heritage in society, the law in this area involves issues of identity, territory, human rights, and the conduct of warfare, among many others.
T
A modern-day legal dispute over an ancient reli- gious site, the Temple of Preah Vihear, exemplifies the wide scope of issues implicated when the ownership of a cultural icon is questioned. Both Cambodia and Thailand claim sovereignty over the land surrounding the Temple of Preah Vihear, a Hindu temple built in the 11th century situated near the Thai-Cambodian border. Conflict about the position of the border between the two coun- tries (and about sovereignty over the Temple) con- tinues to this day. We will use this dispute to talk
he international management and pro- tection of cultural heritage is a rapidly growing area of international law. At one time, whether international law applied to
about the evolution of cultural heritage law, and how the development of this area of law contrib- utes to one of international law’s greatest prom- ises, that of upholding peace among nations.
The World Heritage System
The landmark international instrument for the con- servation of heritage sites is the Convention Con- cerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention), adopted by the United Nations Educational, Scien- tific and Cultural Organisation (UNESCO) in 1972. The Convention’s importance lies largely in global- izing the topic of heritage protection, which had long been considered to fall within the reserved domain of states. It has achieved almost universal ratification, with 187 out of 193 current UNESCO Member States as State Parties to the Conven- tion. Importantly, the Convention moved away from the idea of cultural “property”, contained in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and introduced the idea of cultural “heritage”, al- lowing for elements such as cultural connections between objects and certain groups to be taken into consideration. Also, the shift contributes to the internationalization of the issue, since the term ‘heritage’ suggests a much broader concern, as it addresses the whole of mankind, while ‘property’ addresses the proprietor alone.
The World Heritage Convention establishes a re- gime, the World Heritage System, to promote worldwide cooperation to safeguard heritage of universal value. The most widely-recognized fea- ture of the Convention is its creation of the World
ILSA Quarterly » volume 20 » issue 1 » October 2011
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