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Preah Vihear
seems to have been at least partially endorsed in subsequent international practice but which must be questioned. If parties, attorneys, expert wit- nesses, and judges alike simplify group identity to fit a legal standard (rather than present accurate, complex facts that challenge the imperfect legal doctrine at work in the case), the law is unlikely to change. Cultural heritage law has evolved so as to accommodate cultural diversity, and “general” international law should reflect this evolution, too.
Judge Moreno Quintana’s dissenting opinion in the 1962 case uses the same line of reason- ing applied by Judge Fitzmaurice to dismiss his- torical and cultural considerations, even though he reaches the opposite conclusion to the majority of the Court. He says that “[a]n analysis of these acts [performed by Cambodia and Thailand in ex- ercising sovereignty over the Temple] need not go back to the historical origins of the building of the temple of Preah Vihear nor need it take account of the religious role which the temple is said to have played for both the Siamese and the Cambodian peoples.” He argues that instead only territory and geography should be factors, in this sense agree- ing with both the majority of the Court and Judge Fitzmaurice’s expansion of that reasoning.
Turning now to the 2011 case: In the context of the present proceedings, in which the sole basis for the Court´s jurisdiction is Article 60 of its Statute, the opportunity for the ICJ to revisit the historical and cultural aspects of the original case will be limited by the 1962 judgment. The judgment on the merits of the dispute cannot be revised by the Court at this stage, and even the Court’s interpre- tation of the 1962 judgment will probably have to be restricted to its operative clauses and the rea- sons that were inseparable from it, as stated by the ICJ in its Order of July 2011.
Yet hypothetically, were one to take on the matter of who the Temple of Preah Vihear should belong to on cultural grounds (which could manifest in in- dividual opinions of Judges when the Court deliv-
ILSA Quarterly » volume 20 » issue 1 » October 2011
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