The Temple of Preah Vihear
ers a judgment in the present proceedings), one would be faced with a very difficult question. As Judge Fitzmaurice pointed out in 1962, the Khmers have inhabited territory that is part of both Cam- bodia and Thailand for many centuries, and Khmer culture is a prevalent both countries. In Thailand, however, ancient temples and other sites of his- torical and cultural significance are often referred to as being “Khmer-inspired”, in a clear attempt to differentiate “Thai” and “Khmer” culture. In this sense, it seems that “Khmer” culture would be- long to Cambodia. Nevertheless, historical studies also point out that the acceptance of Khmer iden- tity in Cambodia is not an organic process of his- torical continuity. Much to the contrary, the Khmer civilization had disappeared for several centuries before it was “rediscovered” in Cambodia and re- integrated in Cambodian life by French colonizers in an attempt to create the “colonial other,” and to “package” their identity in a way that could make them less threatening. Thus, the Khmer identity Cambodians hold on to could be considered in its origins an artificial product of Orientalism, not an actual historically continuous cultural connection.
At the same time, in its current proceedings the Court might find it important to consider the cul- tural dimensions of the conflict. After all, a cultural divide is at the heart of the dispute, which is clear if one only considers that the inscription of the Temple on the UNESCO list served as a trigger for the current animosities. Moreover, an effec- tive and enduring solution to the conflict may be found in international heritage law and the tools for the joint protection and management of cultur- al monuments which it offers. Concern with some of the cultural dimensions of the case was already expressed in Judge Cançado Trindade’s separate opinion to the Order on Provisional Measures. After examining the significance of the Temple to both cultures, and Thailand’s grief over Cambodia’s alleged refusal to cooperate with Thailand for a joint nomination of the Temple for the World Heri- tage List, Judge Cançado Trindade remarked on
the Temple’s importance and universal value, indi- cating even that “[t]he prohibition of destruction of cultural heritage of an outstanding universal value and great relevance for humankind is arguably an obligation erga omnes [toward all].”
Concluding Remarks: The Law and Politics of Identity through the Lenses of Heritage
Where does this all leave us? Since the Temple of Preah Vihear decision was issued in 1962, in- ternational law has become more welcoming to culture and heritage. International cultural heritage law is still heavily influenced by sovereignty-based arrangements, but it has come a long way towards a more humanized version. The human dimension of heritage law incorporates culture and connec- tions between culture, territory and populations, and puts these connections at the very center of legal understandings of heritage. These under- standings may change the way some international law principles are regarded, including that of ter- ritorial sovereignty, which lies at the heart of the Temple of Preah Vihear case before the ICJ.
However, culture is not single-faceted but nuanced and complex, and to suggest that international law requires culture to be presented in a single, neatly packaged way is unhelpful and a dangerous simpli- fication. Fifty years ago, the ICJ dismissed culture from the case with a single sentence. That deci- sion did not stop culture being used as the grounds for conflict; actually, if anything, it may have even sharpened cultural chasms between Cambodi- ans and Thais. Now, despite the jurisdictional dif- ficulties of using cultural heritage arguments in a request for the interpretation of a judgment that disregarded cultural heritage considerations, the ICJ has another opportunity to assess the cultural importance of the Temple. The Court´s judgment on the present proceedings may elevate the role of cultural heritage in international law, thus stay- ing true to the promise of both legal regimes: to promote peace through understanding among peoples who can find unity in difference.
. ILSA Quarterly » volume 20 » issue 1 » October 2011
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