The Temple of Preah Vihear
application with the ICJ in April 2011 requesting an interpretation of the Court’s 1962 judgment in the Temple of Preah Vihear case. According to Cambodia’s application, “in seeking to minimize the legal effects of the 1962 Judgment, Thailand accepts Cambodia’s sovereignty over the Temple, but denies that this has effects beyond a limited perimeter confined strictly to the Temple itself.” In other words, Thailand claims that the 1962 judg- ment did not actually set a boundary between the two states, as it only decided the matter of sover- eignty over the Temple.
In July 2011, the ICJ issued an order of provisional measures requiring, inter alia, that troops from both Cambodia and Thailand be removed from the Temple area. The Court determined that there was urgency and the risk of irreparable injury un- less provisional measures were ordered, including further damage to the Temple itself. It also estab- lished a “provisional demilitarized zone” around the Temple until the Court reaches a final decision on Cambodia’s request for an interpretation of the Court’s 1962 judgment. The box on page 33 and map on the opposite page describe this judge- ment in greater detail.
But what does the most recent legal action on this situation mean for international cultural heritage law? What role has cultural heritage law played in this dispute that now spans half-of-a-century?
International Cultural Heritage Law and the Temple of Preah Vihear Cases
Cultural heritage considerations played no role in the Court’s 1962 judgment. The ICJ judgment dismisses the application of cultural heritage law in one sentence: “The Parties have also relied on other arguments of a physical, historical, religious and archaeological character, but the Court is un- able to regard them as legally decisive.” No other reason is given as to why these types of argu- ments are dismissed, despite the Court’s own rec- ognition of the importance of the Temple, saying that “[a]lthough now partially in ruins, this Temple
has considerable artistic and archaeological inter- est, and is still used as a place of pilgrimage.”
Judge Gerald Fitzmaurice, in his separate opinion in the Temple of Preah Vihear case, does shed light on why the Court dismissed evidence related to the historical, cultural and archaeological importance of the Temple. According to Judge Fitzmaurice, be- cause there was a Treaty to serve as the legal basis for the dispute, “extraneous factors which might have
weighed...in making that settlement, and more particularly in determining how the line of the frontier was to run, can only have an incidental rel- evance in determining where today, as a matter of law, it does run.” By making this statement, Judge Fitzmaurice suggests that history and culture are of secondary importance in determining who has a legitimate claim over a historical site. He goes on to say that “for these factors to have any serious influence, it would at least be necessary that they should all point in the same direction, and furnish unambiguous indications.”
This line of thinking could be excused as the prod- uct of a different era. But, if taken seriously today, it is a promotion of some sort of strategic essen- tialism, a neat package of culture and history that tells a coherent and compelling story, without nu- ance or internal dissidence, to easily fit legal cate- gories and claims. Regrettably, strategic essential- ism prevails to this day, even for anthropologists testifying before international tribunals on the de- termination of indigenous claims (most notably at the Inter-American Court of Human Rights).
In his opinion, Judge Fitzmaurice did also note that the Khmer origins of the Temple were a “neutral” factor in the Court’s decision, “since it seems to be admitted that there are and were, in these regions, populations of Khmer origin on both sides of the frontier.” This much is true, as the Khmer geographical presence in the region shifted over the centuries. However, there is a dangerous undertone that culture should be unambiguous if it is to have any legal weight, a suggestion that
ILSA Quarterly » volume 20 » issue 1 » October 2011 35
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64