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The enduring agency of borderlandregimes: the aftermath of serialregulations with different scopesand temporal scales at Preah Vihear,CambodiaBrigitta Hauser-Schäublina & Sven Misslingb

a Institute for Cultural and Social Anthropology, University ofGöttingen, Germanyb Institute of International Law and European Law, University ofGöttingen, GermanyPublished online: 14 Apr 2014.

To cite this article: Brigitta Hauser-Schäublin & Sven Missling (2014) The enduring agency ofborderland regimes: the aftermath of serial regulations with different scopes and temporal scalesat Preah Vihear, Cambodia, The Journal of Legal Pluralism and Unofficial Law, 46:1, 79-98, DOI:10.1080/07329113.2014.894849

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The enduring agency of borderland regimes: the aftermath of serial

regulations with different scopes and temporal scales at Preah Vihear,

Cambodia

Brigitta Hauser-Sch€aublina* and Sven Misslingb

aInstitute for Cultural and Social Anthropology, University of G€ottingen, Germany; bInstitute ofInternational Law and European Law, University of G€ottingen, Germany

(Received 7 September 2013; accepted 12 February 2014)

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 upa century-old conflict about the ownership of these monuments and the boundarybetween the two nations. The demarcation of geographic boundaries took place at theinstigation of the French colonial power in the early-20th century and was,subsquently, challenged by Thailand. Over time, the area became a borderland withdifferent legal orders issued by various actors at specific points in history. These legalorders created borderland regimes consisting of concepts, norms and regulations setup by different national (Cambodian or Thai government and its colonicalpredecessor) and international authorities, such as the International Court of Justiceand UNESCO World Heritage Committee. However, the validity and consequences ofa particular regime did not always end when a new political order or regime wasinstalled. Some regulations and people’s sentiments and memories of theirimplementation created a factual temporal overlapping of these regulations and – in acertain sense – even a situation of what one might call a kind of “legal pluralism”. Inthis chapter, the authors examine these changing, temporarily overlaying, spatiallyoverlapping regimes from an anthropological and legal perspective. These regimeswere organised in a legally hierarchical order in such a way that some orderstemporarily suspended others – with impacts up to the present day.

Keywords: Borderland regimes; Preah Vihear; International Court of Justice;UNESCO World Heritage; Thai/Cambodian conflict

Introduction

In July 2012, the Cambodian troops finally pulled out of the temporarily demilitarised zone

around the ancient temple ruins of Preah Vihear, listed as a UNESCO World Heritage Site

in 2008, on the Cambodian/Thai border. Preah Vihear has been a contested monument

between the two nations for almost 100 years (see also Croissant and Chambers 2011).

With this withdrawal, a further, temporarily clearly limited sequence in a series of various

borderland regimes began that had started in the second half of the nineteenth century.

These regulations or legal orders have been decreed by different legislative authorities:

first, the French colonial power and, later, national and international institutions. The dura-

tion of these regimes varied depending on the intention and goal of those who established

them. In most cases, they were set up and put into effect for an indefinite period of time:

*Corresponding authors. Email: Brigitta.Hauser@sowi.uni-goettingen.de; sven.missling@jura.uni-goettingen.de

� 2014 Legal Pluralism and Unofficial Law

The Journal of Legal Pluralism and Unofficial Law, 2014

Vol. 46, No. 1, 79–98, http://dx.doi.org/10.1080/07329113.2014.894849

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some intended to set up timeless or “eternal” boundaries based on mutual contracts which

did not contain any temporal condition apart from their start. Other regimes, such as the

UNESCO World Heritage regulation, are linked to particular requirements, which deter-

mine the continuation or the end of a World Heritage status of the monument. Moreover,

all these regimes define what kind of social and spatial activities and interactions were

allowed. At the same time, each of these regimes turned the plot of land and its delineation

into something else by highlighting a new and specific quality. Correspondingly, all of

these regulations define whose property it is and under whose control it stands.

The most recent borderland regime, the installation of a demilitarised zone, was

decreed by an order of the International Court of Justice (ICJ) on 18 July 2011, after four

years of border conflicts with several violent clashes between Cambodian and Thai troops

(ICJ Order of 18 July 2011). It was understood as a provisional measure that turned the

UNESCO Heritage site, which had been temporarily ruled by a military border regime,

into an area exclusively restricted to civilians. However, the local population on both

sides of the border had already either fled or had been evacuated during the conflicts and

were not allowed to return; some of their settlements had been levelled to the ground.

The clustering of regimes which have accrued around this borderland between Cam-

bodia and Thailand, and the way they have been experienced and practised by people has

not only created confusion and conflicts, but has also, over time, produced national emo-

tions of pride and humiliation on both sides. These emotions have wound each side up

more and more. Any decision by the ICJ regarding the reinterpretation of an earlier (ICJ

Pleadings, Oral Arguments, Documents 1962) judgement concerning the line of the bor-

der (see below; furthermore, see Missling 2011) bears the risk of loss of face for the

defeated party. Nevertheless, it has to be acknowledged that, from a purely international

law perspective, Cambodia had the right to appeal to the ICJ for reinterpretation of the

earlier 1962 judgement, since all formal preconditions were fulfilled in the present case.

In this chapter, we will examine how a single stretch of land with temple ruins on it

was subjected to changing, temporarily overlaying, spatially overlapping regimes that

were organised in a legally hierarchical order in such a way that some orders temporarily

suspended others. Each of these orders has its origin in a particular temporal political set-

ting and served corresponding goals. Each of them aimed at demarcating a bounded terri-

tory and its borders with different implications for social practice: sometimes these

boundaries were invisible and could be crossed without any consequences; sometimes the

crossing required special permits or was prohibited and trespassing implied being killed.

We must also note that the national or local interpretation and application of these orders

may differ from the way they were intended by the legislative authority.1

Borderlands can be understood as an arena where international relations are disclosed.

They can be considered as “zones which serve as an international relations litmus test,

where the immediate consequences of declining goodwill between states may be first and

perhaps most readily felt” (Donnan and Wilson 2010, 3). However, as we will show, the

opposite processes may take place as well, especially when new value is added to the bor-

derland and its characteristics by third-party actors, such as the listing of the temple ruins

of Preah Vihear as a UNESCO World Heritage Site. In any case, borderlands are areas of

political contestation and negotiation between actors who are mostly living far off the

contested land and whose goals and experience differs substantially from the ones who

are living and working there (Donnan and Wilson 2010, 7–8). It is this perspective of

political actors and their strategies that we will investigate in this chapter. We understand

“borderland regimes”, first and foremost, as legal orders of different kinds. Following

Tsing (1994), Wolputte (2013) understands the borderland “as a shifting place, time or

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domain where competing discourses and regimes of power overlap, characterised by overt

contradictions and paradox, by simultaneous presence (or absence) often imagined at the

‘outside’ but pertaining to and defining a core” (3). “Regimes” refers to regulations and

the varying authorities who decreed them at a certain point in history; “regimes” often

have enduring impacts even if they have formally been replaced by others.

In the case of Preah Vihear, the borderland regimes consist of concepts, norms and

regulations set up by different national (Cambodian or Thai government and its colonial

predecessor) and international authorities and/or institutions, such as the ICJ and

UNESCO World Heritage Committee (UNESCO-WHC). Each regime originated at a

specific point in the history of the region involved. The validity and consequences of a

particular regime, however, did not always end when a new political order or regime was

installed. Some regulations and people’s memory of their implementation created a fac-

tual temporal overlapping of these regulations and – in a certain sense – even a situation

of what one might call a kind of “legal pluralism”. As we will show, some of the regimes

focused more on the border, while others focused more on parts of the borderland with its

monuments. In a sense, the border and the disputed issues seem to be vacillating between

the geographical location, the monuments and national identity discourses in general (see

Vaughan-Williams 2012, 6). We call them regimes because they were set up and con-

trolled by corresponding actors who had specific interests and goals in mind and drew on

particular forms of legitimation.

The international institutions and their involvement in the conflict through decrees,

judgements and listings played an outstanding role in these border and borderland

regimes. Their decisions resulted in a “certification of power” (Benda-Beckmann 2005;

Benda-Beckmann, Benda-Beckmann, and Griffiths 2009) of the “winner” and, therefore,

contributed to a shift in the power relationship between the two countries. This power

relationship has indeed many facets, economic and others, but, as we will show, contains

a politics of symbolics loaded with sentiments, such as triumph and humiliation.

In contrast to other border regimes, these were not primarily concerned with “the reg-

ulation of freedom, security, exchange and violence” (Borneman 2012). In the Cambo-

dian/Thai case, most of the earlier borderland regimes focused on regulating the issue of

property, that is, the ownership, access and safeguarding of the ruins of the eleventh-

century Hindu temple.

Thus, it was contested cultural resources, symbolic capital interpreted as representing

the origin of their glorious past and claimed by both nations that raised the question of

the borderline and initiated disputes. In comparison, the local population living nearby

and still using these remains in their ritual life have been largely ignored.

We will start in the first part of this paper by briefly outlining the UNESCO World

Heritage regime that triggered the (latest) outbreak of the armed border conflict between

Cambodia and Thailand. We then move to the subsequent regimes as a consequence of

the conflict, the military border regimes and the explicitly temporary regime of a demili-

tarised zone decreed by the ICJ in July 2011 and, most recently, the final ruling of the ICJ

in its judgement of November 2013. In the second part, we will examine the background

of these developments, that is, the long and painful history of border regimes that started

with the French colonial power and were solidified by an ICJ decision in 1962 (Hauser-

Sch€aublin 2011a; Missling 2011). In the 1962 ICJ judgement, finally confirmed by the lat-

est ICJ ruling of 11 November 2013 (Request for Interpretation), an internationally

legally binding “certification of power” (Benda-Beckmann 2005), i.e. the perpetuation

and legitimation of the power relationship between Cambodia and Thailand by a presti-

gious and authorised international institution (ICJ 1961), took place. Its aftermath,

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reinforced by the UNESCO nomination and registration of the temple site as a World

Heritage Site, another “legal certification of power”, is still effective today.

When did UNESCO’s World Heritage regime become a borderland regime?

The temple complex of Preah Vihear was inscribed on the UNESCO Cultural World Heri-

tage List in Quebec in 2008. The UNESCO Committee’s decision was frenetically cele-

brated by Cambodia. In Thailand, it was accompanied by fierce protests, although the Thai

Foreign Minister had previously signed an agreement with Cambodia in which he had con-

sented to the nomination of Preah Vihear by Cambodia on behalf of Thailand.2 However,

this consent had been without authorisation from the Thai parliament. The Foreign Minis-

ter had to step down from his office immediately after Preah Vihear became listed.

With this prestigious nomination, this international organisation also acknowledged

that the temple was the rightful and exclusive property of the Kingdom of Cambodia, but,

according to its convention, simultaneously, a “world heritage of mankind as a whole”

(UNESCO Convention 1972, 1). Thus, these archaeological remains, which are under the

sole sovereignty of Cambodia (ICJ Pleadings, Oral Arguments, Documents 1962), were

put – in a certain way – under the patronage of the international organisation with the

goal of conserving and protecting them for the future of mankind (see Articles 1 and 11

of the 1972 UNESCO World Heritage Convention and its respective operational guide-

lines).3 At the same time, such a World Heritage Site is open to visits by tourists from all

over the world. As the consequences showed, this certification of the temple ruins unin-

tentionally became part of symbolic politics (Wilson and Donnan 2012, 6) by boosting

the symbolic power of Cambodia. Therefore, on an ideological level, the power relation

between the two countries shifted, reinforcing ethno-nationalistic pride, on one hand, and

feelings of loss and humiliation, on the other.

Since UNESCO is an organisation of sovereign states and the UNESCO World Heri-

tage Convention is a legal instrument that binds the state parties, the implementation of

the UNESCO regulations concerning such sites is, above all, left to its members, that is,

to the national governments and the boards they appoint (see Schorlemer 1992, 139;

Genius-Devime 1996). A number of new and fundamental regulations were put into effect

at an international level through the inscription of the temple of Preah Vihear (for details,

see UNESCO-WHC 2008, 220). Although these regulations focused on the monument

and its management, they also touched on the sensitive issue of the changing and diffuse

border regimes that came into existence many decades earlier (see below). However, the

regulations put forward by UNESCO, which overlaid and even reinforced the 1962 ICJ

judgement, have consequences for the local population as well. One of the most serious

changes consists of the fact that the area of the World Cultural Heritage Site was, regard-

less of the international character of such a site as a heritage of mankind as a whole men-

tioned above, transformed into state property. According to the Cambodian measures

taken in conformity with the conservation and management plan for the temple site

(which had first been submitted to UNESCO-WHC in 2008 and, in a revised version, to

the UNESCO World Heritage Centre in 2010; see UNESCO-WHC 2011b, 6), private

property and the free sale and acquisition of land are no longer allowed.4 This implies the

expropriation of former landowners, small landholders, often resulting in conflicts, as,

for example, the case of Angkor – the ancient Khmer royal city 140 km south of Preah

Vihear – has shown (Hauser-Sch€aublin 2011a).The management plan for a World Heritage Site implies the imposition of a new

standardised spatial order, a zoning of the whole area, with corresponding environmental,

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social and economic regulations. These spatial orders define future users and their corre-

sponding activities: some will ensure the safeguarding of the monument, and others will

allow economic development. The spatial order of UNESCO World Heritage Sites is

valid only as long as the monument and its maintenance fulfil UNESCO’s requirements.

The deletion of the Dresden Elbe Valley in 2009 from the UNESCO World Heritage List

is such a case; however, the deprivation was the result of changing priorities of the major-

ity of Dresden’s citizens (see German Constitutional Court 2007; also see Peselmann and

Socha 2009, 76–79; Peine 2006). Very recently, the archaeological site of Pompei has

risked being deleted from the prestigious UNESCO World Heritage List because the Ital-

ian government has neglected the adequate conservation and maintenance of the site.5

These examples show that UNESCO regulations have a clear spatial and a rather intrinsic

temporal scope. The threat to delete a site from the UNESCO World Heritage List, can,

in most cases, be understood as an attempt and means to enforce compliance.

In the case of the temple of Preah Vihear, the management plan comprised three

zones, namely the monument or temple zone, a buffer zone, containing further archaeo-

logical sites, and a development zone. While the first two zones aim at the preservation of

remains that testify the living past of the former Hindu sanctuary for the future, the tem-

poral orientation of the latter looks towards the future, namely its development as a tourist

destination and, therefore, a considerable source of income for both the state and the pri-

vate sector. The plan to relocate people living in the core zone is part of this regime. It

should be kept in mind that this new borderland regime, as set up by the concrete manage-

ment plan, was not required nor drafted by UNESCO itself and its institutions in detail. In

its nomination decision of 2008, the World Heritage Committee only obliged Cambodia

to submit a conservation and management plan. The concrete borderland regime is, there-

fore, not part of a compulsory legal regime of international law. It is, rather, the outcome

of the exertion of legal discretion and national power which is left by the UNESCO 1972

Convention and its operational guidelines to the state parties and, therefore, to

Cambodia’s legislatory and administrative sovereignty in the present case.

The management plan, which eclipsed the immediate Thai neighbourhood of the tem-

ple, also showed that Cambodia planned to have a new access route. This road would

allow the expected inrush of tourists from all over the world to move quickly and effort-

lessly by car and bus from the Cambodian highways in the south, up the steep cliffs of the

Dangrek Mountains, where the World Heritage Site is located, overlooking the Cambo-

dian plains. The original main temple avenue with its impressive staircase starts from the

Thai side. During previous years, most of the tourists who visited the temple ruins entered

the area from the higher Thai territory, since access was much easier from there. The bor-

ders could be easily crossed by international tourists in both directions. Vendors had set

up small stalls at the border selling soft drinks, snacks and souvenirs for tourists who vis-

ited the temple. Apart from a track, there existed only a precipitous staircase on the Cam-

bodian side leading up to the temple 400 metres higher. This staircase had been – along

with the whole area – heavily mined since the Khmer Rouge era and was, as the material

survival of this earlier, deadly, border regime, inaccessible.

The full and straightforward implementation of the UNESCO regime by Cambodia,

however, could not take place. Thailand claimed that the land, 4.6 km2, where the new

access road was planned (and quickly built by a Chinese company after the nomination;

see Winter 2010) was her property. This was exactly the area about which the ICJ judge-

ment of 1962 had not made a clear decision with regard to ownership or, in correct legal

terms, state sovereignty, leaving space for implicit claims by both nations. Thus, the

UNESCO regime, which addressed only the temple complex and the land on which it

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stands, was perceived by Thailand as a reinforcement and legitimation of an earlier border

regime, which – in spite of verbal compliance – they were never really prepared to accept

forever. Although the World Heritage Committee’s decision to enlist Preah Vihear as a

World Heritage Site on request of Cambodia contained a legal disclaimer (referring to

Article 11, paragraph 3, phrase 2 of the 1972 World Heritage Convention and therefore

saying that the “inclusion of a property situated in a territory, sovereignty or jurisdiction

over which is claimed by more than one State shall in no way prejudice the rights of the

parties to the dispute”; see UNESCO 1972), the border was suddenly moved into the cen-

tre of the political boundary conflict between Thailand and Cambodia. At the same time,

this conflict also moved into the centre of the UNESCO regime that as such had

completely different goals, among them to internationalise an important cultural site of

Cambodia by declaring it as a heritage of mankind. The first armed clashes between the

two nations, which also partly damaged the monument, erupted immediately after the

temple’s inscription.

From international regulations to “war laws” and the ICJ’s demilitarisation regime

As a consequence of the UNESCO listing and its implementation, another (national)

regime started that is beyond the control of the international organisation. According to

the reservation of states’ sovereignty, which is also laid down and made reference to as a

fundamental and overall principle of international law in all UNESCO conventions (see

Schorlemer 1992, 139), UNESCO leaves the implementation of the management regime

to the state parties of the 1972 World Heritage Convention. According to UNESCO’s

humanistic goals, to internationally promote peaceful coexistence and cooperation

between the states (see Article 1 of the UNESCO Constitution of 1946), these unantici-

pated conflicts created an embarrassing impasse. At the subsequent annual meetings, the

UNESCO World Heritage Committee made recommendations to conduct special meas-

ures, such as the installation of a “monitoring mechanism” (see Hauser-Sch€aublin 2011a,

37; see also UNESCO-WHC Decisions 2009, 2010, 2011a, 2011b). However, the interna-

tional organisation, the main actor, remained quite powerless (see Missling and Water-

mann 2009; Missling 2011). The main reason for the lack of power lies in the judicial

construction and the division of international rights and obligations between the actors

and within the international World Heritage regime. Since the UNESCO (1972) World

Heritage Convention authorises and binds, above all, the state parties with regard to the

nomination and the conservation of inscribed World Heritage Sites, the legal position of

the international community and the international organisation itself is relatively weak.

Once a World Heritage Site is inscribed, the main instrument left to the international

organisation is the so-called “reactive monitoring” procedure according to Articles 169 et

seq. of the operational guidelines.6 There is also the possibility of inscribing endangered

properties under the conditions of Article 11 paragraph 3 of the 1972 Convention on the

list of “World Heritage in Danger” or, as an ultima ratio, to delete them from the World

Heritage List (Article 11 paragraph 4 of the 1972 Convention and Articles 192–198 of

the operational guidelines; see Buzzini and Condorelli 2008, 180–195). Under such con-

ditions, the UNESCO World Heritage regime, with its binding regulations, ends. How-

ever, neither UNESCO and its institutions nor other state parties to the 1972 Convention

are entitled by UNESCO law or other international treaty law to intervene or take any

other compulsory measure without or even against the consent of the states concerned

when a World Heritage Site is contested. The only means left to the international

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organisation are of a diplomatic nature. However, the diplomatic steps that were taken by

the UNESCO Director General in the Thai-Cambodian case were not really successful.

The eruption of conflicts after the UNESCO listing immediately resulted in a military

borderland regime, since military personnel had already taken a stand on both sides of the

border before the UNESCO World Heritage Committee had come to a decision. The reg-

ulation of border issues was no longer in the hands of politicians and bureaucrats, and

crossing the border was no longer a question of visa. Instead, the armies took over control

and the closing of the border was through the force of weapons. The military borderland

regime factually suspended and overlaid the explicitly civilian regime of UNESCO. The

borderland became a potential combat zone, which left no room for civilians and their

rights. Whosoever, by error or purpose, transgressed the borderline was shot. In the course

of the armed conflict, the local people on both sides of the border fled or were evacuated

after their homes had been targeted. Many Western countries issued travel warnings, so

that the World Heritage Site, which was expected to attract large numbers of tourists,

remained deserted. The simple accommodation built by local entrepreneurs for an over-

night stay for tourists remained empty; the small market (as long as it was allowed to

remain) no longer provided goods for tourists, but temporarily for soldiers.

After some time, the guesthouses and the market stalls were levelled to the ground;

their owners had disappeared. Hundreds and even thousands of soldiers camped in the area

destined to be the core zone of the World Heritage Site. Bullet-proof shelters were built

from which the soldiers could watch the activities of the “enemy” along the border, with

their weapons at hand. In short, the whole area was turned into a military zone with its cor-

responding legitimacy, namely to protect the nation and one of its powerful national sym-

bols, the newly elected World Heritage Site, if necessary by the use of arms. Over time, the

border conflict also spread to other border sites where Khmer temples were located.7

Under the pressure of worldwide attention, both nations realised that the practices of

war or, literally speaking, even the “laws of war”, could not remain a permanent regime

and the dispute could not be settled by force of arms. Both nations acknowledged that

they needed help from outside since they were unable to solve the problem themselves.

Therefore, both parties were looking for international authorities that could offer adequate

procedures or regimes. In the meantime, the UNESCO regulations were not abolished, but

their application and implementation were suspended. Cambodia even considered calling

for a meeting of the United Nations Security Council in 2011. Thailand, however, pre-

ferred direct negotiations. Since both nations are members of ASEAN (Association of

Southeast Asian Nations), it seemed obvious to make use of the good offices, conciliation

and mediation of this regional organisation under the current chair of the Indonesian pres-

ident. At the ASEAN summit in May 2011, however, the conflict could not be solved.

After long and complicated negotiations, both parties finally agreed to have Indonesian

ceasefire observers, on behalf of ASEAN, patrol on both sides of the disputed territory

(Kesavapany 2011).8 The kingdom of Cambodia, however, went a step further and

appealed to the ICJ again in April 2011; it requested a reinterpretation of the 1962 judge-

ment, including the issue of the disputed area of 4.6 km2 claimed by Thailand (ICJ Order

of 18 July 2011).

Meanwhile, the conflict had ramifications on the UNESCO World Heritage Commit-

tee, too. Its 35th meeting in June 2011 ended with an �eclat when Thailand left the session

under protest and declared that they would denounce the 1972 World Heritage Conven-

tion (UNESCO Director-General 2011).9

The first – and most remarkable – thing the ICJ decreed in July 2011 was that a provi-

sional demilitarised zone around the temple of Preah Vihear had to be established. Both

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parties have been obliged to withdraw all military personnel from the area and desist from

any armed activity directed at the zone. Regarding Cambodia’s major request at the ICJ,

to provide a reinterpretation on the merits of the 1962 judgement according to Article 60

of the Rules of the Court, the ICJ (under Article 74, paragraph 3, of the same rules and

pursuant to Article 41 of the ICJ Statute) started a hearing on 19 April 2013, at which

both parties could present their claim. However, during the hearing, it once more became

clear that both parties stuck to their old and well-known claims and legal arguments.

Cambodia especially again made reference to its right to territorial sovereignty over the

temple site as it had been perpetuated by the ICJ in 1962 (also see Tanaka 2012).

By the judgement of 11 November 2013, the ICJ, by the way of interpretation, finally

confirmed its decisions on the merits, as stated in the 1962 judgement. In its latest deci-

sion, the Court declared unanimously “that Cambodia had sovereignty over the whole ter-

ritory of the promontory of Preah Vihear, as defined in paragraph 98 of the present

judgment, and that, in consequence, Thailand was under an obligation to withdraw from

that territory the Thai military or police forces, or other guards or keepers, that were sta-

tioned there” (ICJ 2013b, 36, paragraph 108). One could state that by this legally incon-

testable decision, the ICJ now confirms the above-mentioned “certification of power” for

forever. Although the decision seems to be quite positivistic (see Buss 2010) and sticks

very close to the international rules of procedure, it has to be said that, from a legal per-

spective, in the present case, the Court could not have ruled otherwise: according to Arti-

cle 60 of the ICJ statute, the Court, in a procedure of request for interpretation, must keep

strictly within the limits of the original judgement and cannot question matters that were

settled therein with legal binding force, nor can it provide answers to questions not

decided in the original judgement (see ICJ 2013a, 4). Thus, the ICJ had no competence

and, in fact, did not decide at all about the boundary line between Thailand and Cambodia

(and neither about the attribution of territorial sovereignty over the still-contested terri-

tory in the surroundings to one of the parties, nor did the Court decide about the described

borderland regimes) in the present judgement. Legally spoken, the only thing the ICJ

could do – and did do – in its latest judgement was to reinterpret, with legal binding force,

the operative paragraphs of the 1962 judgement. From this point of view, it was clear that

it had to confirm that Thailand was under obligation from the vicinity of the temple. But

the Court now took the opportunity to clarify what is meant by the term “vicinity” or, in

other terms, “the Temple area”, as introduced by the 1962 judgement (see ICJ 1962, oper-

ative paragraphs 2 and 3). The “vicinity” of the temple or “the Temple area” is now

described as a very small area, namely the promontory of Preah Vihear whose limits con-

sist of specified natural features (ICJ 2013b, 33, paragraph 98).

Thus said, one could hardly argue from a legal point of view that the 2013 ICJ judge-

ment of interpretation did change the relationship between the above-described, overlap-

ping borderland regimes at Preah Vihear. The impact of the judgement should rather be

appeasement and stabilisation of the situation. However, it has to be admitted that the

judgement does of course have effects on the political situation and the relationship

between the two countries.10

Although the installation of the demilitarised zone by provisional measures in 2011

and the ICJ judgement on Cambodia’s request of reinterpretation are, from a legal per-

spective, two separate decisions11; the case has to be seen from a more general perspec-

tive as a unique political and social process.

Furthermore, there is one most remarkable aspect to be highlighted in the present

case: it is the fact that the ICJ took measures in its order of July 2011 which go far

beyond what Cambodia asked for in its request on the merits of the case, and which

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consisted, nota bene, only in the confirmation of the legal obligation that Thailand had,

in accordance with the 1962 ICJ judgement, to withdraw “any military or police forces

or other guards or keepers, stationed by her at the temple, or in its vicinity on Cambo-

dian territory” (ICJ Decision 1962, 37). The ICJ obliging both parties to withdraw their

military personnel from the provisional demilitarised zone referred to Article 75, para-

graph 2, of the Rules of the Court, which “expressly states” that the ICJ, under Article

41 of its Statute, has the power “to indicate measures that are in whole or in part other

than those requested, or measures that are addressed to the party which has itself made

the request” (ICJ Order of 18 July 2011, 15). In this context, the Court recalled that “it

has already exercised this power on several occasions”, such as in the case of Costa

Rica v. Nicaragua (Provisional Measures, Order of March 8, 2011, paragraph 76), and

stated that when it is indicating provisional measures for the purpose of preserving spe-

cific rights, it also has “independently of the parties’ requests, [. . .] the power to indi-

cate provisional measures with a view to preventing the aggravation or extension of the

dispute whenever it considers that the circumstances so require” (ICJ Order of 18 July

2011, 15).

Although the ICJ explicitly made reference to the recent Costa Rica case, it is quite

seldom12 and – with a special regard to the number of separate opinions, dissenting opin-

ions and declarations of 8 of the 15 judges which partly also concern the question of the

provisional measure – seems quite to be contested that the Court exercised its power in

this manner. The main judicial criticism that can indeed be raised for very good reasons

in this case is the concern, as, for example, raised by President Owada in his dissenting

opinion that the Court in its order went “beyond the limit inherent in the essential charac-

teristic of the provisional measure as being incidental to the main dispute” (Owada 2011,

1). In the present case, the main dispute consists of the question whether Thailand was

under obligation to withdraw her military personnel from Cambodian territory.13

In his remarkable Separate Opinion to the ICJ Order of July 2011, Judge Cancado

Trindade went far beyond a traditional and scholastic legal interpretation. He did not look

at the case of Preah Vihear simply under a conventional “strict territorialist approach”

(Cancado Trindade 2011, 27) as is common in international law. Instead, he brought up

for the very first time the relationship between “timeliness” and “timelessness” in a purely

legal context and made use of it for the purposes of legal interpretation. According to

Cancado Trindade (2011), time is “inherent to the conception of the ‘progressive devel-

opment’ of international law” and therefore “to its interpretation and application, and to

all the situations and human relations regulated by it” (5). Under this approach, he argues

that “[l]egal positivism and political ‘realism’, with their static vision of the world,

focused on the legal order or the ‘reality’ of a given moment, have [. . .] been invariably

subservient to the established order, to the relations of domination and power” (Cancado

Trindade 2011, 5) and calls this the “timeliness” of international law (7). This idea seems

to be comparable to what Franz and Keebet von Benda-Beckmann called the “legal certi-

fication of power” (see Benda-Beckmann 2005; F. Benda-Beckmann, K. Benda-Beck-

mann, and Griffiths 2009). Furthermore, Cancado Trindade points to another aspect of

timeliness of international law: he points out that Cambodia, in the request for interpreta-

tion of the 1962 ICJ judgement and therefore drawing the Court’s attention to the fact

that “the right to seek the assistance of the Court to resolve a dispute [. . .] is not subjectedto any time-limit by Article 60 of the Statute” (Cancado Trindade 2011, 7), assumes the

legal validity of a positivistic legal regime (as to the question of excessive legal positiv-

ism and the possibility or need to respect regional customary laws, especially in the case

of the temple of Preah Vihear (see Buss 2010).

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In contrast, the other aspect which Cancado Trindade tries to make fruitful for a

highly innovative legal interpretation of international law in the present case is the con-

cept of timelessness which seems to be inherent in both international law and – to an even

greater extent – in the idea of a common World Heritage of mankind as a whole (see

Cancado Trindade 2011, 7–9 and 23–33). By acknowledging that the temple of Preah

Vihear is a masterpiece of art and at the same time an important sacred site “intended to

stand for times immemorial, to bring together the faithful of the region, to fulfil their spir-

itual needs” and therefore “erected [. . .] in search of timelessness” (Cancado Trindade

2011, 6), he argues that the outstanding significance of the site could also justify the order

of (provisional) legal measures, such as the installation of the demilitarised zone

(Cancado Trindade 2011, 23–33). However, in his Separate Opinion to the ICJ judgement

of 11 November, Judge Cancado Trindade made no more reference to his statement (see

Cancado Trindade 2013).

It seems that the aspect of timeliness is an important one in the present case: the

demilitarised zone covered large parts of the area already delineated in the management

plan of the World Heritage Site. Thus, the attention moved away from the border and

back to the surroundings of the temple. It took the two parties 12 months until they started

to comply with the ICJ decree. Although Cambodia still celebrates Preah Vihear as her

latest World Heritage Site and, therefore, also acknowledges UNESCO’s regulations, the

local authorities do still not allow Thai citizens to enter the area of Preah Vihear, as we

noted in February 2013. The implementation of the UNESCO regulations, therefore, dif-

fers from the way they are conceived in theory.

Although the order of the concrete provisional measures by the ICJ in the present

case, especially with regard to Cambodia, might be judicially contested and put into ques-

tion for good reasons in the legal debate, it has become clear that international law

empowers the ICJ to take measures in an international border conflict between two sover-

eign states which go even beyond the parties’ requests. Therefore, international law adju-

dicates a quite self-reliant role to the ICJ in the solution of international conflicts. The

reasoning behind the ICJ decision of 18 July (ICJ Order 2011) is understandable and

shows that the Court, or at least a majority of its judges, are aware and also ready to make

use of the manoeuvring room the international law leaves to the Court for the defence of

international peace. It might not be by accident that, in the context given, the ICJ makes

explicit reference to the UN Charter. It reminds the parties that “the Charter of the United

Nations imposes on all Member States of the United Nations to refrain in their interna-

tional relations from the threat or use of force against territorial integrity or political inde-

pendence of any State”, that “the United Nations Member States are also obliged to settle

their international disputes by peaceful means in such a manner that international peace

and security, and justice are not endangered” and, therefore, that “both parties are

obliged, by the Charter and by general international law, to respect these fundamental

principles of international law” (ICJ Order of 18 July 2011, 18).

The resource: symbolic capital, pride and humiliation

The four years of violence after the UNESCO listing of Preah Vihear took place and the

gradually increasing dimension of the armed border conflict suggest that there was much

more at stake than simply the ruins of a temple. The statements given by both Thai and

Cambodian governments, as echoed by the media, showed that the dispute was primarily,

as briefly mentioned, about symbolic capital, heavily loaded with emotions as well as bit-

ter memories. The temple of Preah Vihear stood for a past experienced and associated

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with recollections and sentiments of diverging kinds. Thus, the material remains of the

temple were not so much responsible for the violence of the dispute between the two

nations, but, first and foremost, what the temple represented for each of the countries. For

the (majority of) Cambodians, the temple of Preah Vihear represents, after Angkor (a

UNESCO World Heritage Site since 1992), a further testimony of the glorious past of

their forefathers, the ancient Khmer. In this political and rather ethno-nationalistic dis-

course, the ancient Khmer are understood as formerly homogenous people who lived in

an (assumed) bounded territory more or less congruent with the Cambodia of today. Cam-

bodia sees her people as direct descendants and, therefore, as the “Khmer nation”

(Edwards 2007, 218). Both the defeat of the Khmer by Thai troops, the capture of Angkor

in 1431, and the fact that the Khmer then became vassals of the Siamese court (in

Ayuthaya, also a World Heritage Site since 1991) are eclipsed in this identity discourse.

On the other hand, the discourse of a homogenous “Khmer nation” and the recognition of

Angkor as a UNESCO World Heritage Site contributed in a considerable way to the

social consolidation, reconciliation and nation-building after the cataclysmic impact of

war and genocide by the Khmer Rouge regime (Winter 2007, 63, 142). Both ancient sites

are key symbols of national unity and pride today.14

By contrast, for Thailand, the temple of Preah Vihear symbolises “lost territories”

(Denes 2006, 35–43), that is, the territories Siam was persuaded to cede to France in the

early-twentieth century. The international recognition of Preah Vihear by UNESCO as

the property of Cambodia was interpreted by Thailand as a further validation of a wrong

that the ICJ had legitimated in 1962. UNESCO performed, so to speak, a second certifica-

tion of power. The ICJ adjudicated in this decree that the temple of Preah Vihear was

located on Cambodian territory (see below). The ICJ declared the border as definitive

since Thailand had not filed their protest in time. The Thai Government decided to com-

ply with the ICJ decision. However, the Thai Minister of Foreign Affairs wrote in a letter

to the UN Acting-Secretary General (dated 6 July 1962) that this agreement was made

“under protest and with reservation of her intrinsic rights”, that is, “whatever rights Thai-

land has, or may have in the future, to recover the Temple of Phra Viharn [the Thai name

of the temple] by having recourse to any existing or subsequently applicable legal proc-

ess” (Cuasay 1998, 881).

From this perspective, it becomes apparent that the acknowledgment of the temple as

Cambodia’s property by UNESCO equalled, therefore, a (further) victory over its neigh-

bour state.

We can sum up this paragraph by concluding that the memory of past events, espe-

cially of the circumstances under which earlier borderlands and border regimes came into

being and became internationally acknowledged as valid, and the emotions, especially

pride, triumph and humiliation, with which they are associated constitute the ideological

background of the dispute over the borderland. For decades, the conflict had only been

latent. It was the nomination and finally UNESCO’s listing that fiercely revived the con-

flict and triggered the number of successive regulations described above.

Retrospective: from zones of transition to border and borderland regimes

As this brief outline of the ideological and emotional background showed, the current

legal situation with its rapidly changing regimes has to be understood as a further step in

a series of historical developments. We will, therefore, explore the socio-political con-

texts in which these borderland and border regimes came into being.

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Seen in a historical dimension, Southeast Asian states were not territorial states. There

are a number of terms being used in anthropology to describe the organisation of these

polities, such as mandala, segmentary, galactic, etc. (for an overview, see Day 2002,

1–37). A sovereign’s power and prestige did not depend on a fixed territory or the size of

the land over which they were ruling, but rather on the number of people. Furthermore, a

substantial part of a lord’s power was based on his charismatic and religious authority,

which he had to prove time and again. Thus, boundaries played almost no role. Instead of

boundaries, especially in the region under discussion, there existed areas of transition or

rather fringes of realms. In the region under debate, people were living who were tied to

the court of Vietnam, as well as to the court of Siam. There were, according to Briggs

(1946, 442–443), for example, two kings ruling over large parts of nineteenth-century

Cambodia: one was oriented towards Bangkok and the other towards Vietnam. Adolf

Bastian, who travelled from Bangkok to Angkor (and further on) in 1863, noted that he

met two governors who ruled over the same area. Each of them sent tributes (such as car-

damom, ivory, pepper and lacquer) to his king (in Bangkok or in Vietnam) on whose

behalf he was ruling there (Bastian 1868, 5).

With regard to Preah Vihear, which was deeply located within the kingdom of Siam

at that time, local or regional lords and their people from different directions, north and

south, visited the temple on special occasions. Aymonier (1901, 207) mentions that

“the Lord of Koukhan” (today’s Khukan is a district of the province of Siseket, Thai-

land) and his people regularly made a pilgrimage to the temple. Thus, what formerly

determined these regions of transition were people and the socio-political, economic

and religious networks in which they were engaged. The temple complex of Preah

Vihear was far from any “boundary” or even boundary regimes, but was more a nodal

point that periodically united people at important ritual festivals. A discontinuous tem-

poral order, ritual periodisation, formerly ruled the access and the use of the temple

complex of Preah Vihear.

At the time the French set foot in “Indochine” in the mid-nineteenth century, Cambo-

dia was, as one of the first maps established by a Frenchman showed, a tiny state squeezed

between Siam and Annan, complemented by Cochinchine Francaise (southern Vietnam)

(Delaporte 1880, plate 381). Chandler (2003) even wrote that Cambodia “ceased to exist

as a recognizable state” in the 1840s (117; see also Silverman 2011, 9). France established

a “protectorate” over Cambodia in 1863. Siam was a mighty neighbour to the north and

west and France was eager to set up a clear line of demarcation in order not to lose further

territory to Siam, and, if possible, to gain new regions. A legitimation was needed for

such an endeavour. As Said ([1978] 2003) has already shown, part of the colonising mis-

sion (notably of France and Britain) was the search for traces of ancient civilisations,

“reviving the glory that was” (203; see also Hauser-Sch€aublin 2011a). The starting point

of France’s colonial endeavour in Cambodia was to investigate, reconstruct and take pos-

session of the realm of the ancient Khmer (Singarav�elou 1999; Edwards 2007; Winter

2007; Klein 2009).

The definition and setting up of borders and the mapping of land as a means to delin-

eate a state’s geographic territory and, therefore, a fixed territory of power was brought to

Southeast Asia by European colonisers (Thongchai 1988; Anderson 2006; Benda-

Beckmann 1999). It replaced other forms of cartography, such as Buddhist cosmography

(Thongchai 1988, 134, 309–313). As Benedict Anderson (2006; elaborating on

Thongchai’s conclusions) explained, the measuring and noting of the material “real”

world on paper was a powerful colonising instrument in the hands of those who knew

how to use it (chapter 10).15

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When the French started to map the land in Indochina, they did so according to the

Western style of mapping land. This follows the principles of the Mercator map, which is

based on a bird’s-eye view, a cylindrical map projection and allows the representation of

the material world in a two-dimensional scheme. Moreover, the consequences of the map-

ping of sites, watercourses and boundaries on a piece of paper are, according to the con-

vention of mapping, binding; the dots and lines on a map are understood to depict the

three-dimensional reality.

“Reviving the glory that was” constituted an important part of the legitimation of the

colonising mission which was understood as a mission civilisatrice. For this purpose, the

cooperation with scholars was indispensable. Therefore, the colonial enterprise cannot be

separated from the research French scholars carried out, bundled in the institutions of

Mission Arch�eologique d’Indochine and EFEO (L’�Ecole francaise d’Extreme-Orient),

and the recommendations they gave to the French colonial government. Again, it was cul-

tural capital they produced and this was turned into a colonial strategy: the former royal

city of Angkor – still within the realm of Siam in the mid-nineteenth century – was the

beginning of this enterprise. The temple of Preah Vihear, once indeed related to Angkor,

was taken as an outpost of ancient Angkor and was, therefore, part of the anticipated for-

mer homogenous Khmer realm. Thus, one of the first missions to explore and identify

regions that might be of interest to France was carried out by Louis Delaporte in his dou-

ble function as Lieutenant de Vaisseau, an Officier de la L�egion d’Honneur, and the head

of the “mission d’explorations des monuments Khmers” in 1873 (see also Baptiste and

Z�ephir 2013). The information assembled by military expeditions and scholars alike

helped the colonial government to develop a strategy that consisted of delineating a terri-

tory of Cambodia that was much bigger than the one they met with when they took hold

of the region in 1863. This strategy can easily be followed on maps: the areas considered

as the heartland of the ancient Khmer were overwritten with “ancient Cambodge” (see

Pavie 1903). The delineation of the reconstructed ancient Cambodia served as a roadmap

for the colonial government, namely to expand the French Cambodian territory accord-

ingly. As a consequence, they carried out negotiations and established agreements with

Siam. As a result of the cultural legitimation, France built up to expand Cambodia’s terri-

tory; she argued on behalf of her protectorate for “retrocession” of regions she considered

as legitimate Khmer land.

It is beyond the scope of this paper to discuss all these negotiations and agreements

between France, Cambodia and Siam in detail. However, we note that these agreements

and treaties never spelled out the properties and regulations inherent in the Western con-

cept (and practice) of boundaries, such as the property of and control over land, people,

access, and closure, as well as the conditions of border crossings (see also Thongchai

1988, 139). Moreover, the contracts never mentioned a period of validity; in theory, the

frontiers were effective when the treaties were signed; they were implicitly assumed to be

valid as long as the colony or the nation state existed.

With regard to the northern boundaries of Cambodia (where, among others, the tem-

ple of Preah Vihear is located), France suggested that Siam choose a “natural” boundary

(which pretends to be above all social entanglements), namely the watershed. According

to the French–Siamese treaty of 1904, the boundary was supposed to run along the ridge

of the Dangrek Mountains. However, only French/Cambodian cartographers carried out

the mapping of the 850 km long boundary in 1906–1907. The map they produced and

which was handed over to the Siamese government in 1908 suggests that the Dangrek

Mountains slope towards the south exactly at the site of the temple complex, implying

that the watershed runs north of it (Cuasay 1998, 863).16 The first border regime began

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with this unilaterally established map – though in practice, it probably did not have any

immediate and concrete effect on the Khmer-speaking people living on either side of it.

The former legal situation of moving back and forth and visiting the temple continued,

especially since no frontier fence or guards were established there.

It would be too lengthy to reiterate here the various facets of the long and complex

history of this border dispute that had already begun when Cambodia was still a French

protectorate. Nevertheless, it is important to note that the attitude Siam (and later

Thailand) displayed towards the validity of the map, which clearly allocated the temple

of Preah Vihear to Preah Vihear, was inconsistent over time. At the beginning, Thailand

even used and distributed the French map without disagreeing with what it represented.

However, while World War II distracted European and Asian countries’ attention from

that area, Thailand sent troops to occupy the temple of Preah Vihear in 1940 and regis-

tered it as a Thai national site. After the end of World War II, Thailand lost the temple

again, only to recapture it in 1954 (Silverman 2011, 3–4). Thus, Thailand’s temporary

annexation of the borderland also resulted in a change of ownership of the temple and

subjected it to her national laws. However, Thailand was repeatedly forced to return it to

Cambodia again.

The political change from a French protectorate to an independent nation in 1953 also

resulted in a different version of the legitimation of ownership. While the French were

proud of having revived the ancient glory of their protectorate by excavating and restoring

material remains of the ancient Khmer and displaying this glory in great European exhibi-

tions, the Cambodians formed an identity discourse out of it. Their state was represented

as an authentic Khmer nation. The border politics became a national identity politics in

which Preah Vihear constituted an important cornerstone and outpost. Accompanying

this, an identity politics began in which the interrelations between history, identity, terri-

tory, and the state are crucial (Wilson and Donnan 2012, 3). It initiated a border regime

that was co-determined by national feelings and vulnerabilities.

After years of violent quarrels about the legitimacy of the border and the ownership

of Preah Vihear, Cambodia appealed to the ICJ, as briefly mentioned above. An interna-

tional governance institution became involved for the first time. A closer look at the

1962 court case of the ICJ reveals – from today’s perspective – that the discussions

were situated in a neo-colonial context in so far as the potency of the authority of the

old colonial sources – the acknowledgement that Cambodia was more or less the legiti-

mate successor of the ancient Khmer – and their authors were mobilised. The French

scholars who had cooperated with the colonial government and reconstructed an

euphemised history that eclipsed the losses and defeats the Khmer had suffered long

before the French entered Cambodia were treated as more or less neutral witnesses. Nev-

ertheless, the ICJ did not base its decision directly on these considerations, but concen-

trated on the attitude and way Thailand had reacted to the contested map. The Court’s

decision was based on formalities. It decreed – according to rules of the game that draw

on Western judicial notions of procedures and norms – that Thailand had failed to file

protest in time. However, the way the ICJ interpreted some fundamental principles of

international law, such as the principles of “estoppel” and “acquiescence”, and applied

them to the Preah Vihear case in 1962 has been considerably criticised by scholars from

the very beginning (see Chan 2004, 439). One can indeed say that the majority of the

Court, at that very time, interpreted these two principles of international law in a very

formal and broad-brush way (see Missling 2011). In the end, the ICJ, therefore,

adjudged the temple of Preah Vihear to be a property of Cambodia, without temporary

limitation. Thailand’s reaction to the decree has been mentioned above.17 At this point,

the border and borderland regime around Preah Vihear began and became increasingly

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charged with disparate emotions and reinforced by symbolic acts (such as an official pil-

grimage of the Cambodian king to Preah Vihear): Since then, Preah Vihear has symbol-

ised for Cambodia the pride of being a Khmer nation, and for Thailand “lost territories”

or rather humiliation (Vail 2007, 121–122).

Further emotions boiled to the surface when the Khmer Rouge invaded Cambodia.

The border played an important role during the (officially) four-year rule of the Khmer

Rouge (1975–1979). An increasing estrangement between Khmer-speaking people on

both sides of the border began, promoted in part by Thailand’s own ethno-nationalistic

policy, accompanied by adapting corresponding ethno-nationalistic discourses. During

the years of the Khmer Rouge regime, the border was – as were large parts of the country

– heavily mined, this being an extreme form of border closure. However, hundreds of

thousands of Cambodians managed to flee across the border. They were accommodated

in refugee camps established by the United Nations Refugee Agency (UHCR) (see French

2002, 441–443). Again, a new temporary border regime was established, one in which a

humanitarian goal constituted the legitimacy for an international involvement. However,

Thailand used the opportunity for a kind of retaliation. Thailand transported 40,000 refu-

gees to the cliffs near the temple of Preah Vihear and forced them to climb down through

the heavily mined landscape in order to return to Cambodia. It is said that several thou-

sand people perished there (Vail 2007, 121–122).

Conclusion

Coming back to the present era, the sequence of events and border regimes that were trig-

gered by the UNESCO listing of Preah Vihear comes as no surprise. As we have shown, a

number of borderland and border regimes with diverse goals, different temporal scales

and spatial scopes were established in the course of the last 100 years. Each of them was

decreed by changing authorities at particular points of history. Although each of these

regimes was formally valid only for a limited period of time and was replaced by a new

one as soon as the political situation changed, the repercussions of the individual regimes,

nevertheless, outlived their basically limited temporality in practice. Thus, the formal

timeliness of such regimes was not necessarily congruent with the timeliness of the

agency of these regimes. It was the memory and the emotions associated with the experi-

ence of some earlier regimes and their concomitants that generated their enduring agency.

The charging of the Khmer temple ruins with added values, such as ethno-national iden-

tity and authenticity, national pride, loss, and humiliation, over the years accounted for

the virulence of the regimes. These circumstances resulted in today’s situation, which can

be characterised as a set of overlaying regimes with different properties and impacts.

Thus, the border conflict between Thailand and Cambodia is not just a result of

“incomplete border demarcation” (Croissant and Chambers 2011, 148), but, first and fore-

most, of the symbolic capital and the feelings with which their shared history is imbued.

This history – ineffaceably burned into the collective memory of the two nations and

interwoven with disparate emotions – started with a far-reaching colonial act: when the

French colonial power turned the ever-changing region of transition into a spatially and

temporarily fixed borderland with binding frontiers based on a whole complex of legiti-

mate constructions. This border regime implicitly contained norms and rules directed at

defining ownership over land and the highly appreciated temple ruins of Preah Vihear,

access to it and the exclusive power of disposal over it. The aftermath of the original colo-

nial map and the regime it implied, and its legitimacy as acknowledged by the 1962 ICJ

judgement provoked the recent armed conflict about the UNESCO World Heritage Site

with its particular borderland regime. Both, the colonial act and the 1962 ICJ judgement,

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have been mostly conceived as timeless since the discussion about the border and border-

land was only about territory and borders rather than about the timeliness of the circum-

stances in which they took place. They both represent – to use Judge Cancado Trindade’s

phrasing – a positivistic “strict territorialist approach”. However, all the consequences

these two decisions have up to the present in fact reveal how much they are embedded in

time.

The direct or indirect involvement of international bodies – for example, UNESCO

World Heritage Committee – in the border and borderland dispute between the two

nations did not really appease the situation or make a clean sweep; rather, the opposite

happened due to the experience and emotions associated with what might have been con-

sidered only as a simple matter of geography. It will be difficult, if not impossible, to

solve the predicament by issuing a single legal framework that will satisfy the diverging

expectations and will heal the wounds left by the former regimes.

Funding

This work was funded by the German Research Foundation, Bonn [HA 2458/13-1].

Notes

1. This paper grew out of the interdisciplinary research (DFG Research Unit on Cultural Prop-erty, 2008–2014, at the University of G€ottingen and funded by the German Research Founda-tion, Bonn) on the establishment of UNESCO World Heritage Sites and the implications suchan international certification has (see Hauser-Sch€aublin 2011a, 2011b; Missling 2011). Weowe many inspiring thoughts for rethinking the case of Preah Vihear to Franz and Keebet vonBenda-Beckmann’s work and the conference they organised in 2012.

2. For the background of this shift of opinion, see Croissant and Chambers (2011, 150—151).3. Interestingly enough and contrarily to the great majority of international legal scholars, only

Judge Cancado Trindade, in his Separate Opinion to the ICJ Order of 18 July 2011, draws anilluminating picture of the legal situation in which he, initially, also focuses on the dimensionof time, density of time and timelessness of international law, legal interpretation and thenature of legal obligation (Cancado Trindade 2011, 2–11). Subsequently, in a second part andmaking use of an innovative approach, he reflects and argues on the need to go beyond a “strictterritorialist approach”, such as that traditionally being used by international lawyers and theICJ under the strict legal concept of “territorial sovereignty”, especially in the present case ofthe temple of Preah Vihear (Cancado Trindade 2011, 27 ff.). In his Separate Opinion, JudgeCancado Trindade points – as we do as well – to the fact that space and people have to beunderstood as a unity in time and international law. Therefore, he draws the conclusion thatprovisional measures have to be taken for the sake of the people in the present case. In addi-tion, he also stresses the international dimension of Cultural World Heritage as a common her-itage of mankind as a whole, and, finally, points to the specific – i.e. not only political, butalso legal – responsibility which grows out of this for all three of them: states, the internationalcommunity of states and, finally, international organisations, such as UNESCO (CancadoTrindade 2011, 23 ff.). With reference to the internationally renowned legal experts (Francioniand Lenzerini 2003), Cancado Trindade (2011) explicitly argues that “The prohibition ofdestruction of cultural heritage of an outstanding universal value and great relevance forhumankind is arguably an obligation erga omnes” (26).

4. We will not discuss the modifications of the management plan suggested and made at therequest of the UNESCO Committee after 2008; UNESCO had strongly asked Cambodia andThailand to cooperate after the violent outbreaks had shown that the temple complex hadturned into a bone of contention between the two states. Nevertheless, no definitive manage-ment plan has yet been adopted (July 2013).

5. Although the World Heritage Committee does currently not recommend the inscription of theproperty on the List of World Heritage in Danger in its official document, it is clear what is

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meant by it. The document lists, among others reasons, “inadequate restoration and mainte-nance, (and) lack of skills” (World Heritage 2013, WHC 13/37.COM/7B, 144–147).

6. In terms of the operational guidelines, “reactive monitoring” first contains “the reporting bythe UNESCO Secretariat, other sectors of UNESCO or the Advisory Bodies on the state ofconservation of specific World Heritage properties that are under [a certain] threat” (Article169). Once the process of “reactive monitoring” is adopted, the UNESCO World HeritageCommittee is entitled to recommend “that State Parties co-operate with Advisory Bodieswhich have been asked by the Committee to carry out monitoring and reporting on its behalfon the progress of work undertaken for the preservation” of an endangered property (Article171). Under the “revised monitoring” procedure, the Committee may also recommend a lim-ited number of concrete steps and/or measures to be taken by the state party concerned, asthey 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 recognisedas being inside Thailand (Silverman 2011, 12–13).

8. When we visited the site in early 2013, there were no ASEAN supervisors on the spot, only theso-called “Heritage Police”.

9. The Thai delegate did not refer again to this threat during the 36th session of the WHC Com-mittee in 2012. There was also no mention of the conflict between the two nations. His Excel-lency. Mr An Sok, the representative of Cambodia, was elected as the new chairperson of theCommittee; Algeria, Senegal, Colombia, Thailand, and Switzerland became new vice-chairpersons (Decision Report 2012, 243–244). He chaired the UNESCO World HeritageCommittee 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 beinga partial victory for both sides. Although both of them stuck to their well-known positions con-cerning 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 totheir boundary conflict. However, it is very interesting that, in the aftermath of the ICJ judge-ment of November 2013, the Cambodian Foreign Affairs Minister, Hor Namhong, presentedawards to four foreign legal experts in recognition of their help in the presentation ofCambodia’s case on Preah Vihear before the ICJ. Inter alia, the award was given to Judge adhoc, Gilbert Guillaume, who was part of the bench at The Hague and who published a declara-tion to the judgement (see Sokha 2013).

11. In the operative clause of its judgement of 11 November 2013, the ICJ does not mention at allthe demilitarised zone. However, since the Court has now delivered its final ruling, there is nolonger 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 infact order provisional measures to bring both the parties in dispute to disengage their respec-tive armed forces from any potential or actual armed conflict and to withdraw their respectiveforces from a certain zone specified in the order (Owada 2011, 2).

13. Due to lack of space, the interesting and quite difficult judicial questions concerning the ordi-nance of provisional measures with regard to Cambodia as the plaintiff cannot be discussedhere 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 pridefor the Cambodian people and the Kingdom of Cambodia” (Phnom Penh Post 2008).

15. Anderson (2006) actually speaks of three instruments that were used in combination with eachother: the census, the map and the museum; “. . . together, they profoundly shaped the way inwhich the colonial state imagined its dominion – the nature of human beings is ruled, the geog-raphy of its domain, and the legitimacy of its ancestry” (167,168). The connection between thematerial remains of the ancient Khmer culture and mapping is exemplary in the case ofCambodia.

16. There were long discussions during the ICJ trial about the watershed and the factual water-course. One expert pointed out that the watershed may possibly have changed over the past50 years in such a way that the water at the location of the temple complex formerly ran to thenorth while, when he investigated the watershed, the water ran to the south. Three possiblealternative watersheds were even discussed at the ICJ (Cuasay 1998, 872).

17. In her response, Thailand challenged these conclusions based on “authentically Khmer” byarguing “There are several Khmer buildings outside Cambodia just as there are many Romanbuildings outside Italy”.

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