David Prater, J.D. Candidate 2012, University of Maryland
The International Court of Justice (ICJ) issued a preliminary ruling on July 18th ordering a demilitarized zone (“DMZ”) around the Preah Vihear Temple on the border of Thailand and Cambodia. While only a provisional measure, this judgment is a departure from a previous decision regarding Preah Vihear and indicates the Court is shifting its position of exclusive Cambodian control over Preah Vihear to an international or bilateral arrangement where responsibilities are likely to be divided to protect a site, which is recognized to be of “outstanding universal value.”
Background
The Preah Vihear Temple is a flashpoint for violent border confrontations between Thailand and Cambodia. It is the most visible representation of a border dispute dating back to Cambodian independence in 1953.
Constructed in the 9th century by the Cambodian Khmer Empire, the Preah Vihear Temple is a Hindu temple to Shiva. Subsequently, Cambodia came under the control of Siam, the predecessor of Thailand, and French Imperial powers. (The majority of populations in Cambodia and Thailand practice syncretic Buddhism, which incorporates elements of Hinduism and popular religions.)
After Cambodia’s independence from France in 1953, Thai troops occupied Preah Vihear. In 1962, Cambodia applied to the ICJ to determine which country was sovereign over Preah Vihear. The ICJ ruled the Preah Vihear Temple to be within the sovereign territory of Cambodia and thus subject to Cambodian control. However, access to the Temple was nearly impossible from the Cambodian side. The Thailand side of the border, however, provided direct access to the Temple. Cambodia has permitted regular access from the Thailand border to Preah Vihear without a visa, provided visitors do not go beyond the Temple.
Since the ICJ 1962 judgment, nationalist movements in Thailand and Cambodia have gained in popularity and moved toward cultural homogeneity within their borders. In 2008, Cambodia applied to the UNESCO World Heritage Centre to have Preah Vihear inscribed as a World Heritage Site. Thailand, believing that the two countries should jointly manage Preah Vihear, protested Cambodia’s unilateral application by withdrawing from the World Cultural Heritage Convention.
Low-level border disputes in 2008 continued to escalate and in 2011 the disputes erupted into more intense violence resulting in at least 18 deaths and thousands of displaced civilians along the border.
So, while Cambodian and Thai religious beliefs are more alike than different, the Preah Vihear Temple has become a point of pride for nationalists within both countries.
The Order
Cambodia brought an application to the ICJ under article 60 of the Court’s charter, which permits the court to interpret “the meaning of scope of [a previous judgment],” in this case the 1962 ICJ judgment. Specifically, Cambodia asked for clarification on the meaning of the ICJ’s order for Thai troops to withdraw from areas “within the vicinity of Preah Vihear.”
The ICJ ordered provisional measures on Cambodia’s application and created a DMZ at Preah Vihear as well as within the borders of Thailand and Cambodia. Five judges dissented because the provisional measures ordered by the Court went beyond the issues presented in Cambodia’s application and created a DMZ in territories not in dispute.
The scope of the ICJ’s provisional measures can be explained by the unique status of the Preah Vihear Temple and its importance to human rights.
Analysis
The ICJ provisional measures should be read in the context of the Convention Concerning the Protection of World Cultural and Natural Heritage (“the UNESCO Convention”) and the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (“the 1954 Hague Convention”).
The UNESCO Convention recognizes “the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong,” and seeks to protect monuments and sites of “outstanding universal value.” By inscribing World Heritage Sites, UNESCO brings those sites under the protection of the UNESCO Convention. Moreover, Article 6(1) of the UNESCO Convention reads:
“Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.”
The 1954 Hague Convention reiterates to sanctity of cultural property “to all mankind” and requires state parties to “refrain[ing] from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.”
The Conventions are in direct opposition to both Cambodian and Thai government claims and conduct. Both sides use Preah Vihear as a symbol to enflame nationalist feelings as a part of the larger border dispute. Both sides have also inflicted incidental damage on the Temple with bullets and mortars.
But because of Preah Vihear’s inscription under the Convention, its value cannot be reduced to competing Cambodian and Thai claims. Instead, the value of Preah VIhear is universal for all people – Thai, Khmer, French, South African, etc. Both Cambodian and Thai armed forces have an obligation to refrain from use of cultural property, which will endanger the property to destruction or damage.
The status of Preah Vihear as an UNESCO World Heritage Site, protected by both the UNESCO Convention and the 1954 Hague Convention, justifies the ICJ’s creation of a DMZ that reaches into the borders of Cambodia and Thailand. While this decision clearly protects the Preah Vihear, it also protects the human right to cultural heritage.
Article 27 of the Universal Declaration of Human Rights states:
“(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”
Because of the universal value of the Preah Vihear, the right to share in the benefits of Preah Vihear is a right of all people. While the DMZ around Preah Vihear in Cambodia and Thailand protect this human right for the time being, the ICJ’s opinion also points toward an internationalization of the area in order to protect both the Temple itself as well as the human right to enjoy the cultural benefits of the Temple.
The unique location of the Temple means it is most easily accessed from the Thai side of the border, even though the Temple remains on Cambodia territory. So, it is likely that any long-term solution to the border dispute, which protects the Preah Vihear and the human right to access the Temple, will require an internationalization of Preah Vihear and the area surrounding it. Officials of the Association of Southeast Asian Nations (“ASEAN”) have tried to negotiate an international zone before and Thailand has similarly made motions toward internationalization of the area. It is clear that the ICJ’s preliminary measures push Cambodia and Thailand toward the negotiating table for internationalization of the area. Moreover, the preliminary measures not only move toward the internationalization of the Preah Vihear Temple area, but also subordinate state claims of Cambodia and Thailand in favor of protecting the universal human right to cultural heritage.
For more information, please read the following:
Thailand to Comply With Cambodian Temple DMZ Imposed by UN, Bloomberg, July 18, 2011.
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