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Abstract
The listing of the ruins of the ancient Khmer temple of Preah Vihear on the Thai/Cambodian border as a UNESCO World Heritage Site of Cambodia in 2008 stirred up a century-old conflict about the ownership of these monuments and the boundary between the two nations. The demarcation of geographic boundaries took place at the instigation of the French colonial power in the early-20th century and was, subsquently, challenged by Thailand. Over time, the area became a borderland with different legal orders issued by various actors at specific points in history. These legal orders created borderland regimes consisting of concepts, norms and regulations set up by different national (Cambodian or Thai government and its colonical predecessor) and international authorities, such as the International Court of Justice and UNESCO World Heritage Committee. However, the validity and consequences of a particular regime did not always end when a new political order or regime was installed. Some regulations and people's sentiments and memories of their implementation created a factual temporal overlapping of these regulations and – in a certain sense – even a situation of what one might call a kind of “legal pluralism”. In this chapter, the authors examine these changing, temporarily overlaying, spatially overlapping regimes from an anthropological and legal perspective. These regimes were organised in a legally hierarchical order in such a way that some orders temporarily suspended others – with impacts up to the present day.
Notes
1. This paper grew out of the interdisciplinary research (DFG Research Unit on Cultural Property, 2008–2014, at the University of Göttingen and funded by the German Research Foundation, Bonn) on the establishment of UNESCO World Heritage Sites and the implications such an international certification has (see Hauser-Schäublin Citation2011a, Citation2011b; Missling Citation2011). We owe many inspiring thoughts for rethinking the case of Preah Vihear to Franz and Keebet von Benda-Beckmann's work and the conference they organised in 2012.
2. For the background of this shift of opinion, see Croissant and Chambers Citation(2011, 150—151).
3. Interestingly enough and contrarily to the great majority of international legal scholars, only Judge Cançado Trindade, in his Separate Opinion to the ICJ Order of 18 July 2011, draws an illuminating picture of the legal situation in which he, initially, also focuses on the dimension of time, density of time and timelessness of international law, legal interpretation and the nature of legal obligation (Cançado Trindade 2011, 2–11). Subsequently, in a second part and making use of an innovative approach, he reflects and argues on the need to go beyond a “strict territorialist approach”, such as that traditionally being used by international lawyers and the ICJ under the strict legal concept of “territorial sovereignty”, especially in the present case of the temple of Preah Vihear (Cançado Trindade 2011, 27 ff.). In his Separate Opinion, Judge Cançado Trindade points – as we do as well – to the fact that space and people have to be understood as a unity in time and international law. Therefore, he draws the conclusion that provisional measures have to be taken for the sake of the people in the present case. In addition, he also stresses the international dimension of Cultural World Heritage as a common heritage of mankind as a whole, and, finally, points to the specific – i.e. not only political, but also legal – responsibility which grows out of this for all three of them: states, the international community of states and, finally, international organisations, such as UNESCO (Cançado Trindade Citation2011, 23 ff.). With reference to the internationally renowned legal experts (Francioni and Lenzerini Citation2003), Cançado Trindade (Citation2011) explicitly argues that “The prohibition of destruction of cultural heritage of an outstanding universal value and great relevance for humankind is arguably an obligation erga omnes” (26).
4. We will not discuss the modifications of the management plan suggested and made at the request of the UNESCO Committee after 2008; UNESCO had strongly asked Cambodia and Thailand to cooperate after the violent outbreaks had shown that the temple complex had turned into a bone of contention between the two states. Nevertheless, no definitive management plan has yet been adopted (July 2013).
5. Although the World Heritage Committee does currently not recommend the inscription of the property on the List of World Heritage in Danger in its official document, it is clear what is meant by it. The document lists, among others reasons, “inadequate restoration and maintenance, (and) lack of skills” (World Heritage Citation2013, WHC 13/37.COM/7B, 144–147).
6. In terms of the operational guidelines, “reactive monitoring” first contains “the reporting by the UNESCO Secretariat, other sectors of UNESCO or the Advisory Bodies on the state of conservation of specific World Heritage properties that are under [a certain] threat” (Article 169). Once the process of “reactive monitoring” is adopted, the UNESCO World Heritage Committee is entitled to recommend “that State Parties co-operate with Advisory Bodies which have been asked by the Committee to carry out monitoring and reporting on its behalf on the progress of work undertaken for the preservation” of an endangered property (Article 171). Under the “revised monitoring” procedure, the Committee may also recommend a limited number of concrete steps and/or measures to be taken by the state party concerned, as they are exclusively defined in Article 176 of the operational guidelines.
7. In a symbolic act, the Cambodian Prime Minister, Hun Sen, visited another Khmer temple site, Ta Muan Tom, to which Cambodia lays claim, although this site is internationally recognised as being inside Thailand (Silverman Citation2011, 12–13).
8. When we visited the site in early 2013, there were no ASEAN supervisors on the spot, only the so-called “Heritage Police”.
9. The Thai delegate did not refer again to this threat during the 36th session of the WHC Committee in 2012. There was also no mention of the conflict between the two nations. His Excellency. Mr An Sok, the representative of Cambodia, was elected as the new chairperson of the Committee; Algeria, Senegal, Colombia, Thailand, and Switzerland became new vice-chairpersons (Decision Report Citation2012, 243–244). He chaired the UNESCO World Heritage Committee meeting in Phnom Penh in June 2013; Preah Vihear was not mentioned at all.
10. As a first reaction, governments of both states welcomed and praised the ICJ decision as being a partial victory for both sides. Although both of them stuck to their well-known positions concerning questions of territorial sovereignty in the further surroundings of the promontory (especially, Phnom Trap), both parties agreed to try to find a common and peaceful solution to their boundary conflict. However, it is very interesting that, in the aftermath of the ICJ judgement of November 2013, the Cambodian Foreign Affairs Minister, Hor Namhong, presented awards to four foreign legal experts in recognition of their help in the presentation of Cambodia's case on Preah Vihear before the ICJ. Inter alia, the award was given to Judge ad hoc, Gilbert Guillaume, who was part of the bench at The Hague and who published a declaration to the judgement (see Sokha Citation2013).
11. In the operative clause of its judgement of 11 November 2013, the ICJ does not mention at all the demilitarised zone. However, since the Court has now delivered its final ruling, there is no longer any need for the maintenance of provisional measures.
12. According to ICJ President Owada, there have only been three cases in which the Court did in fact order provisional measures to bring both the parties in dispute to disengage their respective armed forces from any potential or actual armed conflict and to withdraw their respective forces from a certain zone specified in the order (Owada Citation2011, 2).
13. Due to lack of space, the interesting and quite difficult judicial questions concerning the ordinance of provisional measures with regard to Cambodia as the plaintiff cannot be discussed here in greater detail.
14. The day after the UNESCO listing (7 July 2008), Cambodian Prime Minister Hun Sen said, according to an article with the title “Temple triumph”, that the listing “is another new pride for the Cambodian people and the Kingdom of Cambodia” (Phnom Penh Post Citation2008).
15. Anderson Citation(2006) actually speaks of three instruments that were used in combination with each other: the census, the map and the museum; “… together, they profoundly shaped the way in which the colonial state imagined its dominion – the nature of human beings is ruled, the geography of its domain, and the legitimacy of its ancestry” (167,168). The connection between the material remains of the ancient Khmer culture and mapping is exemplary in the case of Cambodia.
16. There were long discussions during the ICJ trial about the watershed and the factual watercourse. One expert pointed out that the watershed may possibly have changed over the past 50 years in such a way that the water at the location of the temple complex formerly ran to the north while, when he investigated the watershed, the water ran to the south. Three possible alternative watersheds were even discussed at the ICJ (Cuasay Citation1998, 872).
17. In her response, Thailand challenged these conclusions based on “authentically Khmer” by arguing “There are several Khmer buildings outside Cambodia just as there are many Roman buildings outside Italy”.