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The 2013 Judgment of the ICJ in the Temple of Preah Vihear Case and the Protection of World Cultural Heritage Sites in Wartime

Published online by Cambridge University Press:  02 September 2015

Alessandro CHECHI
Alessandro CHECHI*
Affiliation:
University of Geneva, Switzerlandalessandro.chechi@unige.ch
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Abstract

This paper looks at the Judgment handed down by the International Court of Justice in November 2013 on the interpretation of its 1962 Judgment in the Temple of Preah Vihear case between Cambodia and Thailand. The primary objective of this paper is to disclose the imperfect account of states’ obligations provided for by the Court. In effect, the ICJ emphasized that Cambodia and Thailand must co-operate pursuant to the World Heritage Convention in the protection of the Temple as a world heritage site of outstanding universal value. Accordingly, the Court obscured the fact that the regime for the protection of cultural heritage in wartime was applicable in this case. This paper first examines the ICJ’s narrow approach and its implications. Next, it brings the focus back into a larger context by analyzing the impact of the ICJ’s jurisprudence on the development of international cultural heritage law.

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Articles
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Asian Journal of International Law , Volume 6 , Issue 2 , July 2016, pp. 353 - 378
Copyright
Copyright © Asian Journal of International Law 2015 

The international practice of the past forty years shows the proliferation of a great variety of cultural heritage disputes. However, it should be said immediately that interstate disputes concerning exclusively cultural heritage matters are rare. In effect, cultural heritage cases invariably involve issues under other legal branches, such as the international law related to the threat or use of force, the law of state succession, and treaty law. This point can be illustrated by considering the Temple of Preah Vihear case between Cambodia and Thailand, which was brought before the International Court of Justice (ICJ or Court) in 1962.Footnote 1

This case regarded an ancient temple named Preah Vihear (following the Khmer language of Cambodia) or Phra Viharn (following Thai language).Footnote 2 This Temple is situated on a promontory in the eastern part of the Dangrek range of mountains, which forms the boundary between these two countries. North of the Dangrek lies the Khorat Plateau of northeast Thailand, while to the south the Temple overlooks the Cambodian plain. Although this dispute mostly revolved around the territorial sovereignty over the Temple and its environs, it also involved delicate questions regarding frontier delimitation, the implementation of international treaties and general principles of international law, the validity of colonial settlements and, finally, cultural heritage protection. The latter issue is relevant in that in 2008 the Temple of Preah Vihear was inscribed on the List set under the Convention Concerning the Protection of the World Cultural and Natural Heritage (WHC)Footnote 3 of the United Nations Educational, Scientific, and Cultural Organization (UNESCO).

This paper examines the Judgment handed down by the ICJ as recently as 11 November 2013 on the interpretation of its 1962 Judgment on the dispute between Cambodia and Thailand.Footnote 4 In particular, it focuses on the final paragraph of the 2013 Judgment. Here, the Court saw fit to move beyond the request for interpretation of the 1962 Judgment in order to link two general principles of international law—the prohibition of the threat or use of force and the obligation to settle international disputes by peaceful means—to the obligations contained in the WHC—namely the obligation to co-operate. Furthermore, the ICJ recognized that the disputed area is a site of religious and cultural significance not only for the peoples of the region but also for humankind as a whole.

The objective of this analysis is to disclose the imperfect delineation of states’ obligations relating to cultural heritage protection provided by the Court in the final paragraph of the 2013 Judgment. In effect, the ICJ obscured the fact that the regime for the protection of cultural heritage in wartime was applicable in the case of the Temple of Preah Vihear. Additionally, this paper uses the dispute between Cambodia and Thailand as a case-study to examine the problems and prospects of the ICJ’s role in the application and development of international cultural heritage law.Footnote 5 In this respect, it is argued that cultural heritage-related disputes should preferably be addressed through methods that are not blindly deferential to the interests of the states involved. The reason is that states have an ambivalent role regarding the general interests of the international community—the so-called “global public goods”.Footnote 6 On the one hand, states have decisively contributed to the development of international law whenever they have placed such general interests above their own individual interests.Footnote 7 On the other hand, it is true that states are too often concerned with pursuing short-term economic, political, or military interests to prioritize global public goods. In connection with this, it has been noted that, although international courts can settle claims against states that undermine public goods, such judicial bodies may also hinder the realization of general interests. This is due to the fact that the classical objective of international judicial procedures is the preservation and enforcement of the interests and rights of states.Footnote 8 It is for these reasons that cultural heritage disputes should be settled through mechanisms that take account of the specificity of the manifestations of culture and of the universal attachment to it, and that can balance the parties’ interests against the historical, ethical, artistic, financial, and legal concerns involved.

This paper shall proceed as follows. It first describes the dispute between Cambodia and Thailand in order to set the scene for the ensuing examination of the 2013 Judgment (Section I). It then looks at the final paragraph of the 2013 Judgment in order to unveil the ICJ’s unsatisfactory account of state obligations relating to cultural heritage protection (Section II). Next, the paper brings the focus back to a larger context—thus beyond the questions posed by the request for interpretation of the ICJ Judgment of 1962—by analyzing the impact of the ICJ’s jurisprudence on the enforcement and development of international cultural heritage law (Section III). The final section contains some concluding remarks (Section IV).

I. THE ICJ AND THE TEMPLE OF PREAH VIHEAR CASE

The Temple of Preah Vihear is an ancient Hindu temple built in the eleventh century bc during the reign of the Khmer Empire. It is situated on a promontory in the eastern part of the Dangrek range of mountains, which constitutes the natural border between Cambodia and Thailand in this region—Cambodia to the south and Thailand to the north. This outstanding masterpiece of Khmer architecture is made up of a system of pavements and staircases that rise up the hill towards the sanctuary, which sits on the cliff top at the southern end of the complex.Footnote 9

The Temple of Preah Vihear has become known to the international community when it became the subject of a heated dispute between Cambodia and Thailand. This dispute dates back to the French colonial occupation of the region. Before turning to the object of the present analysis—the ICJ Judgment of 2013—it is useful to summarize the relevant facts that led to the Judgment of 1962 and to the request for interpretation.

In 1904, after the Franco-Siamese War of 1893, France (of which Cambodia was then a protectorate) and Siam (as Thailand was then called) concluded a treaty on, inter alia, border demarcation. To this end, the treaty provided for the creation of a mixed commission composed of officers appointed by the two Parties, and established that the frontier in the region of the Dangrek mountain range would follow the natural watershed line.Footnote 10

In 1907, a team of four French officers, three of whom were members of the mixed commission, were requested to prepare a series of maps. These experts were tasked to work under the principle that the border would follow the watershed line. However, the topographic map (Annex 1 map) covering the part of the Dangrek range where the Temple is situated departed from such a principle. As a result, the Preah Vihear promontory and the Temple were not placed on the Thai side but on the Cambodian side. The Annex 1 map was communicated to the Siamese government and provincial authorities in 1908, but was never officially approved or objected, neither by the mixed commission, which had ceased to function some months before, nor by Siamese authorities.Footnote 11

Following Cambodia’s independence on 9 November 1953, Thailand occupied the area of the Temple. As attempts to negotiate a peaceful settlement proved unsuccessful, in October 1959 Cambodia seized the ICJ. In its unilateral application, Cambodia requested the Court to

adjudge and declare that … (1) the Kingdom of Thailand is under an obligation to withdraw the detachments of armed forces it has stationed since 1954 in the ruins of the Temple of Preah Vihear; (2) that the territorial sovereignty over the Temple of Preah Vihear belongs to the Kingdom of Cambodia.Footnote 12

The ICJ did not discuss which state was the successor to the Khmer Empire nor did it focus on questions of cultural heritage. So, the Temple was not the subject matter of the dispute per se, it was only the point of reference for the settlement of a dispute regarding territorial sovereignty.

On 15 June 1962, the Court ruled that “the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia” and that “Thailand is under an obligation to restore to Cambodia any [cultural] objects” that may have been removed from the Temple or the Temple area by the Thai authorities.Footnote 13

The ICJ’s determination that sovereignty over the Temple belonged to Cambodia was based on the principle qui tacet consentire videtur si loqui debuisset ac potuisset (he who keeps silent is held to consent if he must and can speak). The Court held that Thailand’s failure to protest the inaccuracy of the Annex 1 map (which was supposed to reflect the watershed line between the two states pursuant to the treaty of 1904) constituted tacit acceptance of the map line itself.Footnote 14

Moreover, regarding the line as mapped in the disputed area, the Court affirmed that there is no reason to think that the Parties attached any special importance to the criterion of the watershed line. According to the ICJ, the states committed to be bound by the map line as eventually delimited in the interests of finality.

At this juncture, it must be said that from a visual perspective—and notwithstanding the fact that the Khmer people are generally seen as Cambodians’ ancestors—it seems impossible that the Temple belongs to Cambodia. This is due to the fact that the promontory where the Temple is situated seems the natural continuation of the landscape of Thailand as it is delimited by a precipitous drop into Cambodian territory.

Although it is apparent that the ICJ was resolved to settle the territorial dispute by upholding the 1904 agreement in order to deter military violence, the 1962 Judgment created a great deal of uncertainty. On the one hand, the ICJ did not expressly demarcate the frontier line between Cambodia and Thailand. On the other hand, the implementation of the Judgment depended on the interpretation of a vague notion contained in the second operative clause of the 1962 Judgment, whereby the Court stated that “Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory”.Footnote 15

Leveraging the vagueness of the term “vicinity”, Thailand implemented the ICJ’s ruling by withdrawing its armed forces only from the area where the Temple stands and erecting a barbed wire fence, which separated the ruins from the rest of the promontory. In other words, Thailand construed the second operative clause in a restrictive way. Cambodia opposed this interpretation, claiming that it was incompatible with the 1962 Judgment. However, the Cambodian government discontinued its protests due to the starting of a civil war in the early 1970s. This conflict prevented the Cambodian government from looking after the Temple, as the northern part of the country fell under the control of Khmer Rouge guerrilla fighters.

In 1998, at the end of the Khmer Rouge regime, Cambodia and Thailand resumed bilateral negotiations with a view to demarcating the boundary. These efforts resulted in a Memorandum of Understanding on the Survey and Demarcation of the Land Boundary, which set up a Joint Commission on Demarcation for Land Boundary.

However, the dispute over the Temple of Preah Vihear re-ignited in 2007, when Cambodia lodged a request for the inscription of the Temple on the WHC List. Attached to that request was a map depicting the site of the monument, a buffer zone, and the course of the frontier between the two states. Of course, this map showed that the entire promontory of Preah Vihear was within Cambodian territory, in accordance with the Annex 1 map but in contrast with Thailand’s construction of the 1962 Judgment.Footnote 16 Thailand’s objections led the WHC Committee to delay the inscription until July 2008, when the Temple of Preah Vihear was eventually included on the WHC List, albeit with “a revised graphic plan of the property”.Footnote 17

Following the inscription, serious armed incidents occurred in the area of the Temple and at several locations along the boundary between the two states. These incidents caused fatalities, injuries, the evacuation of local inhabitants, and material damage to the Temple. For these reasons, the UN Security Council called for a permanent ceasefire in 2011.Footnote 18

Thailand contested the inscription on the WHC List by various means. For instance, at the 35th session of the WHC Committee, the Thai delegation lamented that the inscription of the Temple had “led to prolonged tension and confrontation between the two neighbouring countries and several armed clashes”. Furthermore, it claimed that the process of inscription was incomplete in that WHC organs had “neglected to observe the basic principles and required procedures as defined in the Operational Guidelines [for the Implementation of the WHC]”, and had failed to respect Thailand’s territorial integrity and sovereignty.Footnote 19 It also affirmed that “any decision relevant to such property should be deferred until the completion of the survey and the demarcation works under the existing Thai Cambodian joint boundary Commission”.Footnote 20

It is against this background that, in April 2011, Cambodia filed a request for interpretation of the 1962 Judgment under Article 60 of the ICJ Statute, together with a request for the indication of provisional measures. Cambodia claimed that measures were urgently required to safeguard its rights “relating to its sovereignty, its territorial integrity and to the duty of non-interference incumbent upon Thailand”, and “to stop any more destruction of the Temple … and to prevent further casualties”.Footnote 21

In its Order of July 2011, the Court instituted a “provisional demilitarized zone” around the Temple, requiring the states to “withdraw immediately their armed forces” therefrom, and to “refrain from any military presence within that zone and from any armed activity directed at that zone”. Moreover, the ICJ held that Thailand “shall not obstruct Cambodia’s free access to the Temple of Preah Vihear”.Footnote 22

Subsequently, in November 2013, the Court handed down its Judgment on the merits of the request for interpretation. The ICJ confirmed that the whole territory of the promontory of Preah Vihear was under Cambodian sovereignty. In the Court’s view, the reasoning followed in the 1962 Judgment showed that the Court established that Cambodia’s territory extended in the north as far as the line on the Annex 1 map.Footnote 23 Next, the ICJ elucidated the territorial scope of Thailand’s obligation to withdraw its armed forces. The Court established that such an obligation had to be construed by identifying where Thai armed forces were actually stationed at the time of the original dispute.Footnote 24 Since the evidence during the 1962 proceedings showed that they were occupying an area covering the entire promontory of Preah Vihear, it ensued that, when employing the term “vicinity”, the Court had that area in mind.Footnote 25 In other words, the ICJ held that the territorial scope of the second operative paragraph could not be confined to the part of it chosen by Thailand. Therefore, the second and third operative paragraphs imposed obligations with respect to an area of territory which extended beyond the Temple itself. The second operative paragraph expressly described this area as Cambodian territory. The third operative paragraph did not do so, but the Court considered that such a description was implicit: an obligation to restore artefacts taken from the “area of the Temple” would be a logical consequence of a finding of sovereignty only to the extent that the area in question was covered by that finding.Footnote 26

II. ON THE ICJ’S REFERENCE TO INTERNATIONAL CULTURAL HERITAGE LAW

At the outset of its reasoning, the Court determined that it had jurisdiction over Cambodia’s request for interpretation pursuant to Article 60 of the ICJ Statute.Footnote 27 Citing prior jurisprudence, it recalled that, in Article 60 proceedings, the only jurisdictional requirement is the existence of a “dispute as to the meaning or scope of any judgment rendered by it”.Footnote 28 More precisely, the dispute must relate to (i) the operative part of the Judgment in question, or (ii) the reasons for the Judgment, provided that they are “inseparable” from the operative clause or represent “a condition essential” to the decision, or (iii) the determination of the points which have been decided with binding force.Footnote 29 In the Court’s opinion, Cambodia’s submission met these requirements because it was aimed at settling an ongoing dispute as to the territorial scope of the second operative paragraph—namely the territorial extent of the “vicinity” of the Temple of Preah Vihear—and as to the binding nature of the Court’s findings concerning the frontier line established with the Annex 1 map.Footnote 30 Furthermore, the ICJ made it clear that it did not have the power to substitute a different assessment for that made with the 1962 Judgment in accordance with the principle of non ultra petita,Footnote 31 and that the process of interpretation is premised upon the “primacy of the principle of res judicata”.Footnote 32

Yet the Court did not limit itself to responding to the request for interpretation but went on to address the threat that armed conflict in the area had posed to the Temple of Preah Vihear. Indeed, paragraph 106 reads as follows:

[The obligations to refrain from the threat or use of force, to respect the territorial integrity or political independence of any state, and to settle any disputes by peaceful means], which derive from the principles of the Charter of the United Nations, are of particular importance in the present context. [T]he Temple of Preah Vihear is a site of religious and cultural significance for the peoples of the region and is now listed by UNESCO as a world heritage site … In this respect, the Court recalls that under Article 6 of the World Heritage Convention, to which both States are parties, Cambodia and Thailand must co-operate between themselves and with the international community in the protection of the site as a world heritage. In addition, each State is under an obligation not to “take any deliberate measures which might damage directly or indirectly” such heritage. In the context of these obligations, the Court wishes to emphasize the importance of ensuring access to the Temple from the Cambodian plain.

Therefore, the ICJ deemed it fit to link the general principles of international law of the prohibition of the threat or use of force and of peaceful settlement of international disputes to the obligations contained in the WHC.

This reasoning lends itself to criticism. This is because it cannot be denied that there existed an armed conflict between Cambodia and Thailand.Footnote 33 From 2008 onwards, each of the two states deployed more than 15,000 soldiers along the frontier. Numerous and repeated serious armed incidents occurred in the area of the Temple and at several locations situated along the boundary between 2008 and 2011. These incidents caused fatalities, injuries, the evacuation of more than 12,000 local inhabitants (10,000 on the Thai side and 2,000 on the Cambodian side), and material damage to the Temple. These are the consequences of the fact that Thai armed forces targeted the Temple because Cambodian soldiers used it to fire on the Thais.Footnote 34 In summary, whilst the ICJ’s reference to the international principles contained in the UN Charter was apposite, the exclusive reference to the WHC is puzzling. By taking into account only the WHC, the ICJ obscured the fact that the existing regime for the protection of cultural heritage in wartime was applicable to this case.

Against this background, I will now turn to analyze two issues that stand out from paragraph 106 of the 2013 Judgment: (A) whether the WHC is the suitable legal regime to ensure the preservation of cultural heritage in situations of armed conflict and occupation; and (B) the interest of local communities and humankind as a whole in the safeguarding of the Temple of Preah Vihear and in having access to it. Although they are not related to Cambodia’s request for interpretation, it seems important to focus on these issues as they stem directly from the passing reference to international cultural heritage law contained in the 2013 Judgment and from the religious and cultural significance of the Temple.

A. The Temple of Preah Vihear Dispute and the International Norms Concerning the Protection of Cultural Heritage in Situations of Armed Conflict and Occupation

The ICJ’s reference to the WHC seems pertinent for a number of reasons. The first is that Cambodia and Thailand were (and still are) party to it. Second, both Parties underlined in their submissions and oral arguments that the dispute re-emerged in 2007–08 as a result of the inscription of the Temple on the WHC List. Third, the philosophy underlying the WHC consists in promoting a system of international co-operation and assistance in the context of which its signatories adhere to the global commitment of preserving the cultural treasures of “outstanding universal value” located within their territories.Footnote 35 Fourth, the inscription of a site on the WHC List brings about various obligations for States Parties. The most important provisions are contained in Articles 4, 5, and 6. Article 4 states:

Each State Party … recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural … heritage [of outstanding universal value] situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

Article 5 provides:

[E]ach State Party … shall endeavor, in so far as possible, and as appropriate for each country: (a) to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; (b) to set up within its territories … one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; (c) to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; (d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and (e) to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.

The language used in these Articles—“to the utmost of its own resources”, “where appropriate”, “endeavor”, “in so far as possible”—indicates that these norms, arguably, do not impose legally binding obligations and hence leave much room for State Party discretion as to the exact nature of the respective responsibilities.Footnote 36 Furthermore, it has been pointed out that these Articles contain moral commitments that should be respected but which do not amount to mandatory obligations.Footnote 37

Article 6 aims at complementing Article 4 and co-ordinating territoriality and the legitimate interest of the international community in protecting cultural heritage of outstanding universal value:

1. 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.

2. The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 [e.g. the sites inscribed in the WHC List and in the List of World Heritage in Danger] if the States on whose territory it is situated so request.

3. Each State Party … undertakes not to take any deliberate measures which might damage directly or indirectly the cultural … heritage … situated on the territory of other States Parties to this Convention.

Clearly, Article 6 preserves state sovereignty and private property rights over listed sites. This means that states (and international organizations) have no power to intervene in foreign jurisdictions to ensure the protection of heritage sites. Moreover, it has been asserted that the principle of co-operation embedded in Article 6 “is inherently incapable of producing definite legal obligations which may be internationally enforceable”.Footnote 38 Similarly, the obligation set out in Article 6(2) is “modest” in that States Parties merely “undertake to give their help, not automatically or on their own initiative, but only if so requested by the territorial State”.Footnote 39

All of this indicates that the WHC can at best incite action,Footnote 40 and that “referring to the matters required to be done by States Parties as a duty or an obligation is a misnomer”, given that a breach of such undertakings “attracts no legal penalty, sanction or remedy”.Footnote 41 In effect, the WHC has been described as “soft” law in the sense that it gives “clear prevalence of rights and advantages over legal obligations”.Footnote 42

More importantly, Articles 4, 5, and 6 do not clarify what level of protection is owed to the properties inscribed on the WHC List in case of armed conflict. The WHC deals with the protection of cultural heritage in wartime only to a limited extent. First, Article 6(3) can be interpreted as referring to military actions during international armed conflicts. It follows that the military activities carried out in and around the Temple of Preah Vihear by both Cambodia and Thailand from 2008 onwards were at variance with the letter and spirit of the WHC.Footnote 43 Second, in accordance with Article 11(4), the WHC Committee shall establish the List of World Heritage in Danger, namely a “list of the property appearing in the World Heritage List … [that] is threatened by serious and specific dangers, such as … the outbreak or the threat of an armed conflict”.Footnote 44

It follows that paragraph 106 of the 2013 Judgment is incomplete with respect to the delineation of the (state) obligations to protect the Temple. In particular, the ICJ could have referred to the norms setting limits to military actions that may threaten cultural assets. Several legal instruments are applicable in wartime. Yet space restriction permits but the briefest of overviews of the humanitarian law treaties that have been adopted after World War II.

Article 53 of the Fourth Geneva Convention of 1949 on the Protection of Civilian Persons in Time of War prohibits the “destruction … of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations … except where such destruction is rendered absolutely necessary by military operations”. The Additional Protocols to the Geneva Conventions are also relevant to the present analysis.Footnote 45 These Protocols forbid military actions directed at, or any military use of, “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples”.Footnote 46

The 1954 ConventionFootnote 47 constitutes the first specialized treaty for the protection of cultural heritage during armed conflict and belligerent occupation. It recognizes the value of “cultural property” as the “cultural heritage of all mankind”, but does not regard it as just a corollary of the overall protection that international humanitarian law provides in wartime. This treaty provides that States Parties must respect the cultural property located in their own territory as well as in other states, and must refrain from any use of the property and its immediate surroundings for military purposes and from directing any act of hostility against such property (Article 4(1)).Footnote 48 In addition, the 1954 Convention requires belligerents to recognize a higher tier of “special protection” for “refuges … centers containing monuments and other immovable cultural property of very great importance” (Articles 8 and 9). Cultural properties belonging to one of these three categories are granted “special protection”, subject to inscription in the International Register of Cultural Property under Special Protection and provided that they are situated at an adequate distance from military objectives and are not used for military purposes.Footnote 49 Other obligations are set out in relation to the removal of cultural property. States Parties must prohibit, prevent, and, if necessary, put a stop to any form of theft, pillage, or misappropriation of cultural property (Article 4(3)). Detailed provisions on illegal export, removal, or transfer of ownership of cultural property from occupied territories and its return are set forth in the First Protocol.Footnote 50 Article I contemplates obligations for occupying powers to prevent and avoid any exportation of cultural objects from occupied territories and, in the event that such exportation would occur, to provide restitution.

In 1999, the system of the 1954 Convention was completed with the adoption of the Second Protocol.Footnote 51 This introduced a number of significant improvements to the Convention as it: (i) updated the regime of the 1954 Convention by introducing concepts contained in Additional Protocol I of 1977, and by extending the scope of application to non-international armed conflicts (Article 22); (ii) defined restrictive and clear parameters about “military necessity” and structured the belligerent’s powers in this sphere (Article 6); (iii) clarified the obligations incumbent upon a State Party in occupation of the whole or part of the territory of another State Party (Article 9); (iv) introduced the new system of “enhanced protection” (Articles 10–14); (v) established individual criminal responsibility and defined the serious violations which have to be punished (Article 15); and (vi) set up the Intergovernmental Committee for the Protection of Cultural Property in the Event of Armed Conflict (hereinafter Intergovernmental Committee) to supervise the operation of the Protocol (Article 24).

The incomplete account of states’ obligations contained in the final paragraph of the 2013 Judgment is anomalous also in the light of the copious international jurisprudence concerning the application of the norms on the protection of cultural heritage during armed conflicts. The most active institution has been the International Criminal Tribunal for the former Yugoslavia (ICTY). Article 3(d) of the ICTY Statute defines as violations of the laws and customs of war any act of “seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and the sciences, historic monuments and works of art and science”. Pursuant to this provision, the ICTY has handed down various convictions for the destruction and profanation of mosques, churches, and other sites of educational, religious, and cultural relevance committed during the Balkan wars.Footnote 52 For instance, this Tribunal convicted a number of war criminals on account of their involvement in the shelling of the Old Town of Dubrovnik.Footnote 53 The ICTY considered the WHC status of Dubrovnik (which had been inscribed in the WHC List since 1979) as a key factor in establishing the gravity of the crime. In Jokić, the Trial Chamber found that, whereas “it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town”.Footnote 54

In addition, it is worth looking at the Extraordinary Chambers in the Courts of Cambodia (ECCC).Footnote 55 According to Article 2 of the Law on the Establishment of the Extraordinary Chambers, the ECCC have the power “to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws … and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979”. Article 6 indicates that the ECCC shall have the power to “bring to trial all suspects who committed or ordered the commission of grave breaches of the Geneva Conventions”, such as the “destruction and serious damage to property”. In addition, under Article 7, the ECCC “have the power to bring to trial all suspects most responsible for the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict”. In Case 002, four high officials were charged with crimes against humanity, grave breaches of the Geneva Conventions of 1949, and genocide.Footnote 56 In particular, they were allegedly responsible for, inter alia, extensive destruction of monasteries, mosques, and statues, and the transformation of such religious buildings into detention centres, pig farms, and warehouses.Footnote 57

Crucially, the jurisprudence of these international bodies—together with the judgments handed down by domestic courtsFootnote 58—has led to the consolidation of a number of general principles in this field: the obligation to protect cultural heritage from the vicissitudes of armed conflict, and the corresponding prohibition of acts of violence against cultural heritage; the prohibition of plundering artworks, and the ensuing obligation of restitution.Footnote 59 These obligations can be imposed upon states as a matter of general international law—thus independently of their consent to be bound under specific treaties.Footnote 60

The International Criminal Court (ICC) is in the position to further develop this trend. On the one hand, the ICC has the competence to prosecute the persons allegedly responsible for the destruction or intentional attacks against cultural propertyFootnote 61 perpetrated after the entry into force of its Statute for the state of which the person accused of the crime is a national, or in the territory in which the crime occurred.Footnote 62 On the other hand, the ICC has the opportunity to do so following the painstaking destruction of cultural heritage perpetrated in Mali by Ansar Dine, an al-Qa’ida-related terrorist organization. This armed group took control of the three main cities in northern Mali in early 2012: Gao, Kidal, and Timbuktu. The last of these was inscribed on the WHC List in 1988. On 28 June 2012, the WHC Committee inscribed Timbuktu on the List of the World Heritage in Danger upon request of the government of Mali in order “to raise cooperation and support for the sites threatened by the armed conflict”. Apparently, the Ansar Dine’s warlords ordered the destruction of mosques and tombs of ancient Muslim saints in Timbuktu because of this decision. Following an official request submitted by the Malian state, on 16 January 2013 the ICC Prosecutor opened an investigation into war crimes committed in Mali, including the wanton and intentional destruction of “protected objects”.Footnote 63 The Chief Prosecutor pointed out that “the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute”.Footnote 64

B. Protecting the Human Factor

In paragraph 106 of the 2013 Judgment, the ICJ not only focused on the question of territorial sovereignty and on the preservation of the monuments located in the territory at issue, but also emphasized the need to protect the people that live in the area of the Temple. In effect, the Court underlined that the Temple of Preah Vihear “is a site of religious and cultural significance for the peoples of the region” and that the states concerned must guarantee free access in and out of the Temple itself. Indeed, although the Temple (and the hill where it is located) is an ancient place of worship, it is still a sacred shrine and a place of spiritual significance for many pilgrims, especially from Cambodia.Footnote 65 Moreover, the ICJ recognized that the Temple is a unique and irreplaceable example of Khmer art and architecture that deserves to be included in the WHC List and safeguarded for all the peoples of the world. Hence the ICJ recognized the importance of this site at the local and universal levels.

Interestingly, Brazilian Judge Cançado Trindade underscored this aspect in his Separate Opinion in the Judgment of 13 November 2013, whereby he affirmed that paragraph 106 of the Judgment demonstrates that the Court “has endorsed the on-going process of humanization of international law”, and that, by “giving its due to the preservation of world cultural heritage, parallel to the safeguard of territorial sovereignty, the Court is contributing to the avoidance of a spiritual damage”.Footnote 66 By contrast, the Judge criticized the Court in his Separate Opinion appended to the Order of 18 July 2011,Footnote 67 as it did not acknowledge the link between people and cultural heritage. In particular, the Judge lamented the ICJ’s “traditional and unsatisfactory territorialist outlook” and emphasized that the fundamental human right to life cannot be “subsumed under territorial sovereignty”. According to the Judge, the ICJ did not distinguish between fundamental human rights and a state’s prerogatives as to sovereignty and territorial integrity. For this reason, the Judge affirmed that “the Court needs to adjust its conceptual framework and its language to the new needs of protection”, beyond state territorial sovereignty and other state-centric interests.Footnote 68 He referred to the safeguard of the “human factor”, namely the rights to life and personal integrity of the members of the local population, as well as the cultural and spiritual heritage of humankind.Footnote 69 In this respect, the Judge affirmed that it can be inferred from the Temple of Preah Vihear case that “the States, as promoters of the common good, are under the duty of co-operation between themselves to that end of the safeguard and preservation of the cultural and spiritual heritage”.Footnote 70 In summary, it can be maintained that paragraph 106 of the Judgment under examination was inserted to reflect the considerations developed by Judge Cançado Trindade in his Separate Opinion in the Court’s Order.

Be that as it may, even from the perspective of peoples’ attachment to the Temple of Preah Vihear, the sole reference to the WHC in the 2013 Judgment seems—again—insufficient. The reason is that international humanitarian law and jurisprudence have greatly contributed to transforming the concept of “cultural heritage” into a collective interest—thereby setting aside the view that cultural assets fall within the exclusive sovereign interest of the territorial state.

In this respect, it must be recalled that the preamble of the 1954 Convention famously states that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”, and that “the preservation of the cultural heritage is of great importance for all peoples of the world”.Footnote 71 Moreover, Article 1 of the 1954 Convention affirms that “the term ‘cultural property’ shall cover … (a) movable or immovable property of great importance to the cultural heritage of every people”. References to the interest of peoples are also contained in Article 53 of Additional Protocol IFootnote 72 and Article 16 of Additional Protocol II.Footnote 73 The idea that local communities and humankind as a whole have an interest in the safeguard of their cultural and spiritual heritage has been given further strength by the UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage.Footnote 74 The preamble of this Declaration declares that “cultural heritage is an important component of the cultural identity of communities, groups and individuals”.

The ICTY’s jurisprudence contributes to the idea that cultural heritage items are cherished by any people in the world. In Jokić, the Tribunal affirmed that the shelling of the Old Town of Dubrovnik “represents a violation of values especially protected by the international community” as “[t]he whole of the Old Town of Dubrovnik was considered … an especially important part of the world cultural heritage”.Footnote 75 It then stated: “the Old Town was a ‘living city’ and the existence of its population was intimately intertwined with its ancient heritage. Residential buildings within the city also formed part of the World Cultural Heritage site, and were thus protected.”Footnote 76 This reasoning was reiterated in the Strugar case.Footnote 77 Here, the ICTY held that cultural property “is, by definition, of great importance to the cultural heritage of every people”, and hence that “the victim of the offence at issue is to be understood broadly as a ‘people’”.Footnote 78 Moreover, in Hadžihasanović & Kubura, the Trial Chamber remarked that

while civilian property is afforded general protection under customary international law, special attention is paid to certain property, namely religious buildings, owing to their spiritual value. Because those values go beyond the scope of a single individual and have a communal dimension, the victim here must not be considered as an individual but as a social group or community.Footnote 79

These findings indicate that the ICTY recognized the collective character of the crime’s victim. This means that any person belonging to the targeted community is victim of a wrong, even if no member of the community concerned is especially affected. This reflects the idea that the right to preserve and enjoy one’s own culture is a collective right, in the sense that it can only be exercised in community with the other members of the group. In such a way, the ICTY has translated into the scope of international humanitarian law a principle that had been developed in the context of international human rights law.Footnote 80

III. THE ICJ AND THE DEVELOPMENT OF INTERNATIONAL CULTURAL HERITAGE LAW

The foregoing discussion is not meant to suggest that a different outcome for the Cambodian request for interpretation—or for the whole dispute between Cambodia and Thailand—would have resulted from a more careful consideration of the sources of international cultural heritage law and international humanitarian law on the part of the ICJ. More simply, the foregoing analysis was intended to emphasize that the Court could have referred not only to the WHC but also to—at least—the 1954 Convention in order to underscore that Cambodia and Thailand were bound by the international legal obligations governing the treatment of cultural property in the event of armed conflict. Had the Court done so, it is likely that the 2013 Judgment would have had repercussions for other (present and future) cases. In the same vein, the objective of the present analysis is not to advocate that the Court should overcome the limits imposed by the principle of non ultra petita Footnote 81 or by Article 59 of the ICJ Statute.Footnote 82 Rather, the argument is that the ICJ—as an agent of legal development and an impartial observer of international practiceFootnote 83—was in the position to reaffirm states’ obligation to protect cultural heritage in wartime with a comprehensive obiter dictum. This is all the more important today in the light of the increasing number of deliberate attacks against cultural resources in connection with international and non-international armed conflicts.

Granted, one could argue that the cultural losses undergone by countries like Croatia and Bosnia during the Balkan War, or Mali, Syria, and Iraq in the past few years, demonstrate that the above-mentioned norms are not effective. However, one must not forget that UNESCO’s instruments have been very successful in raising awareness of the significance of cultural heritage protection in wartime, and in introducing criminal liability. This is evidenced by the fact that the legislation of numerous states affirms that it is a punishable offence to attack cultural assets,Footnote 84 and that the obligation to avoid damage to buildings and monuments (provided they are not used for military purposes) is set forth in many military manuals.Footnote 85

With this in mind, it is interesting to isolate the reasons for the minimal impact of the ICJ’s jurisprudence on the development of the specifics of international cultural heritage law (A), and to discuss a concrete example illustrating how the ICJ could have contributed to enhancing the protection of WHC sites in times of armed conflict (B).

A. On the Negligible Impact of the ICJ on the Development of International Cultural Heritage Law

As the principal judicial organ of the United Nations, and the only court of a universal character with general jurisdiction, the ICJ plays an important part in world governance, notably by ensuring the peaceful settlement of international disputes. One can hardly deny that, while “it would be an exaggeration to assert that the Court has proved to be a significant instrument for maintaining international peace”, its judgments and advisory opinions have “made a tangible contribution to the development and clarification of the rules and principles of international law”.Footnote 86 However, if it is true that the ICJ’s judicial activity plays a decisive role on the broad legal landscape, this is hardly the case in the specific field of cultural heritage. This is due to the fact that—apart from the Temple of Preah Vihear case—the ICJ has dealt with only a handful of cases concerning tangible cultural heritage.Footnote 87

Two cases were dismissed on jurisdictional grounds. The Application of the International Convention on the Elimination of All Forms of Racial Discrimination case regarded the treatment of the Georgian ethnic minorities living in Russia.Footnote 88 Georgia denounced not only the Russian policies of racial hatred and segregation and discriminatory legislation operated in Abkhazia and South Ossetia, but also the destruction of monuments in various villages.Footnote 89 The case Certain Property Footnote 90 concerned the ownership of a painting by the seventeenth-century Dutch master Pieter van Laer. This was confiscated after World War II by Czechoslovakia—without compensation—from Prince Franz Joseph II of Liechtenstein. The Prince challenged the seizure before Czechoslovakian courts, but to no avail. In 1991, the painting was loaned to a German museum. Thus Prince Hans-Adam II of Liechtenstein—as heir to the former owner—filed suit in Germany seeking restitution. However, no less than four judicial bodies rejected the Prince’s claim. The matter could have ended there. But the Prince’s lawyers submitted an application before the ICJ. Liechtenstein requested the ICJ to adjudge that Germany has incurred international legal responsibility because of the decisions rendered by its national courts with respect to Liechtenstein property.Footnote 91

Three other cases were decided on the merits. However, in these cases the ICJ’s impact was not on core aspects of substantive cultural heritage law. These aspects remained in the shadow. In the Bosnian Genocide case,Footnote 92 the ICJ was provided with persuasive evidence as to the deliberate destruction of numerous non-Serb religious buildings—such as mosques, Catholic churches, and synagogues—in the absence of military activity or after the cessation thereof. The Applicant State argued that the systematic destruction of buildings, libraries, and other religious and cultural sites was evidence of the Respondent State’s plan to obliterate all traces of life and culture of the Muslim population in the targeted territory, so as to amount to genocide. Although it recognized that such acts amounted to international crimes, the ICJ concluded that the targeting of representative cultural assets could not be considered a genocidal act within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.Footnote 93 The Court reached the same conclusion with respect to the claims of Croatia and Serbia in another recent case concerning the Genocide Convention.Footnote 94 In Jurisdictional Immunities of the State,Footnote 95 Germany contended that Italy violated its sovereign immunity by, inter alia, taking measures of constraint against Villa Vigoni. Located near Lake Como, Villa Vigoni is a German state property used as museum and as seat of a cultural centre. The ICJ ruled in favour of the Applicant State, thereby confirming that immunity from execution applies to state-owned cultural property located in the territory of the forum state insofar as: such property is specifically in use or intended for use for governmental purposes; the state which owns the property has not expressly consented to the taking of such measures; that state has not allocated the property in question for the satisfaction of a judicial claim.Footnote 96 In so holding, the Court upheld the validity of two provisions of the United Nations Convention on Jurisdictional Immunities of States and Their Property,Footnote 97 namely Article 19, which contains the three above-mentioned conditions, and Article 21, which singles out cultural assets as a category of property to be considered in use for “government non-commercial purposes”, thus immune from execution.Footnote 98

A few more revelatory statements may be found in individual opinions. In his Dissenting Opinion appended to the Advisory Opinion on the Legality of Nuclear Weapons,Footnote 99 Judge Weeramantry maintained that the “destruction of the cultural treasures representing the progress of civilization through the ages” would be an inevitable casualty of the use of nuclear weapons and affirmed that any attack against historical monuments, works of art, or places of worship would constitute a grave breach of humanitarian law under the 1954 Convention and the Additional Protocol II of 1977.Footnote 100

Finally, it is worth noting that the ICJ did not address the question of the protection of cultural and religious heritage in the Advisory Opinions on KosovoFootnote 101 and the Israeli Wall,Footnote 102 even though this was one of the issues raised before the Court.Footnote 103

Although this sparse case-law cannot explain the Court’s dismissive attitude displayed in paragraph 106 of the 2013 Judgment in the Temple of Preah Vihear case, it underscores that the ICJ’s contribution in this field has been minimal. Arguably, this is one of the consequences of the limits of international adjudication.Footnote 104 An experienced scholar stated that the “first rule of international litigation is to avoid it if it all possible”, given that litigation is “uncertain”.Footnote 105 But the unpredictability of outcomes is not the only factor militating against recourse to international adjudication. Apart from the fact that it is often costly and lengthy, other pitfalls originate in one of the fundamental principles of international adjudication, namely the principle of consent. According to this principle, no state can be compelled without its consent to submit its disputes to an international court or be subject to procedures resulting in a binding decision of a third-party adjudicator. This entails that a state can refuse to consent to a court’s jurisdiction or, if it has previously adhered to a court’s jurisdiction, it can withdraw its consent or even decide not to comply with a decision delivered against it.Footnote 106 Other causes of the ICJ’s dismaying case-load in cultural heritage matters derive from its limited jurisdiction. The contentious jurisdiction of the ICJ need not be described here in great detail. It suffices to recall that the ICJ does not grant access to entities other than states. It follows that an individual’s claim may be brought to the attention of the ICJ only through a state’s endorsement. Moreover, it must be recalled that the Court lacks the power to initiate proceedings, and is restrained by the prohibition of going ultra petita partium. In other words, the ICJ depends on the applications and submissions formulated by states and thus it has a limited capacity to shape the subject matter of the dispute brought before it. In this respect, it must be noted that, while it is true that contemporary international law posits a community interest in the preservation of assets of great historical and artistic value, states have hitherto not shown a great willingness to enforce such an interest by litigating cultural heritage-related disputes before the ICJ. This can be explained by the fact that states prefer to achieve a settlement through diplomatic negotiation or other judicial fora.

Apart from these considerations, it can be argued that, had it referred to the international norms on the protection of cultural heritage during armed conflict in paragraph 106 of its 2013 Judgment, the Court would have testified that cultural heritage law has become an integral part of the fabric of international law. Indeed, since their establishment, UNESCO and other international organizations have promoted the building of a comprehensive legal regime—including recommendations, declarations, directives, guidelines, regulations, and conventions—in order to ensure the protection of various facets of cultural heritage, notably monuments, archaeological sites, artworks, ceremonial objects, landscapes, intangible heritage, cultural rights, and cultural identity. This means that cultural heritage law has developed through a holistic approach, one that brings together the cultural and natural heritage and takes into account the link of such heritage with the life of people and groups treasuring it and the social structures and processes that permit the creation and transmission of such patrimony to future generations.Footnote 107 Particularly, in the context of the international law of armed conflict, the interest in the protection of cultural heritage has led to the progressive development of the law in at least three directions: (i) the elevation of attacks against cultural property to the legal status of international crimes; (ii) the consolidation of the law of individual criminal responsibility under international law for serious offences against cultural objects; and (iii) the development of the law of state responsibility for the intentional destruction of cultural heritage.Footnote 108

In sum, the ICJ could have opened the eyes of the international community to the fact that international law proscribes the targeting of cultural material during armed conflict and that the safeguard of cultural heritage is a common responsibility that transcends states’ prerogatives as well as the economic worth of such a heritage. The disastrous cultural losses that occurred during recent international and non-international armed conflicts demonstrate that cultural heritage is one of the preferential targets of warring factions. Destruction and dispersion of cultural material did not occur as “side effects” of warring activities, but were planned in order to hit the spiritual and cultural connection between the enemy and the targeted heritage.Footnote 109

B. Developing Synergies Between Treaty Regimes: The Role of International Courts

As stated above, it is submitted that in its 2013 Judgment the ICJ could have referred not only to the WHC but also to the 1954 Convention for at least two reasons: first, Cambodia and Thailand were (and still are) party to it;Footnote 110 second, there was an armed conflict between these states in the period 2008–11. Additionally, deference to the 1954 Convention could have been grounded on the principle lex specialis derogat legi generali: the more detailed and specific norms for the protection of cultural heritage in times of armed conflict contained in the 1954 Convention and its protocols ought to prevail as against the general rules contained in the WHC. Of course, this depends on the type of assets at stake as not every site inscribed in the WHC List can automatically benefit from the protection of the 1954 Convention. This would be the case only if: (i) the state where such property is located (and the other state involved in the conflict) is party to the 1954 Convention; and (ii) the cultural site at stake falls within the scope of application of the 1954 Convention.Footnote 111

With respect to the latter issue, it must be considered that the definitions contained in these treaties do not coincide.Footnote 112 The WHC covers monuments, groups of buildings, and sites of “outstanding universal value” (Article 1; emphasis added), while the 1954 Convention applies to “movable or immovable property of great importance to the cultural heritage of every people” (Article 1(a); emphasis added). In addition, the 1954 Convention provides for a “special protection” regime for “monuments and other immovable cultural property of very great importance” (Article 8; emphasis added). Hence, it can be submitted that the threshold to qualify for protection under the 1954 Convention is lower than the threshold to obtain protection pursuant to the WHC.Footnote 113 Accordingly, property included on the WHC List would certainly meet the threshold for protection under the 1954 Convention.Footnote 114 A similar question arises with regard to the relationship between the WHC and the Second Protocol to the 1954 Convention. According to Article 10 of the Second Protocol, only “cultural heritage of the greatest importance for humanity” (emphasis added) can be placed under “enhanced protection”.Footnote 115

Several advocates have expressed their hope of arriving at the elaboration of precise criteria for establishing a synergy between the WHC List, on the one hand, and the International Register of Cultural Property under Special Protection (under the 1954 Convention) and the List of Cultural Property under Enhanced Protection (under the Second Protocol to the 1954 Convention), on the other. Moreover, the WHC Committee has recognized “the benefits of closer co-ordination of its work with other UNESCO programmes and their relevant Conventions”,Footnote 116 including the 1954 Convention and the Second Protocol. The Guidelines for the Implementation of the Second Protocol go further than that as they establish that “[i]t is presumed that the [Intergovernmental] Committee … will consider that immovable cultural property inscribed on the World Heritage List satisfies the condition of greatest importance for humanity”.Footnote 117 In addition, in 2012 the Intergovernmental Committee for the Protection of Cultural Property in the Event of Armed Conflict requested the Secretariat to ensure that synergies between the Second Protocol and the WHC “apply at all levels when assisting Parties with the identification, submission of proposals for ‘enhanced protection’, inclusion of cultural property on the List, and protection and safeguarding measures of cultural property” both under the Second Protocol and the WHC.Footnote 118 The Intergovernmental Committee also called on States Parties to the Second Protocol to apply for the granting of Enhanced Protection for their cultural properties that are already inscribed on the WHC List. Furthermore, it invited the Director-General to propose that the WHC Committee consider the modification of the format for the nomination of properties for inscription on the WHC List.Footnote 119 According to this proposal, the inscription form under the WHC should contain the possibility for states that are also Parties to the Second Protocol to request at the same time the inscription of a property on the WHC List and the List of Cultural Property under Enhanced Protection.Footnote 120 However, it can be expected that the obstacles that have prevented states from submitting nominations for the latter list would encumber the functioning of the new nomination form.Footnote 121

In this context, more decisive steps toward the establishment of a nexus between the treaties under consideration have been made by the ICTY in the cases concerning the shelling of Dubrovnik.Footnote 122 In Strugar, the ICTY stated: “there was extensive damage to property, even though the Old Town was a World Heritage protected site” (paragraph 176); “[a]s regards the seriousness of the offence of damage to cultural property … the Chamber observes that such property is, by definition, of ‘great importance to the cultural heritage of every people’” (paragraph 232); “[t]he Old Town is also legally distinct from the rest of the wider city because the Old Town … enjoys a World Heritage listing and the protections and immunities that are consequent on that listing” (paragraph 279). Moreover, the ICTY held that Article 3(d) of the ICTY Statute is a rule of international humanitarian law that reflects the provisions of the 1954 Convention (paragraphs 227–30), and that “all the property within the Old Town [of Dubrovnik, a WHC site] … is within the scope of Article 3(d) …” (paragraph 327). These passages demonstrate that the Tribunal deliberately used the definitions provided for in the relevant treaties as if they were equivalent, seemingly with the aim of bridging the two treaty systems.Footnote 123 It can thus be argued that, had the ICJ mentioned the WHC and the 1954 Convention in its 2013 Judgment, it would have contributed to elucidating the interplay between the definitions and the protective mechanisms set forth in these treaties.

IV. CONCLUSIONS

This paper has examined the manner in which the ICJ has addressed the issue of cultural heritage protection in its interpretation of the 1962 Judgment in the Temple of Preah Vihear case. This analysis was triggered by the passing reference to international cultural heritage law—namely to Article 6 of the WHC—in the final paragraph of the 2013 Judgment. Therefore, the Temple of Preah Vihear dispute is used as a case-study for a twofold purpose: to underscore that the regime for the protection of cultural heritage in wartime was applicable to the Temple as a result of the violent military clashes that erupted in 2008 between Cambodia and Thailand; and to examine the impact of the ICJ’s jurisprudence on the development of international cultural heritage law. Accordingly, the paper looked beyond the narrow confines of Cambodia’s request for interpretation submitted to the ICJ.

Two other aspects of the 2013 Judgment are worth mentioning. The first is that the ICJ, notwithstanding the omission discussed in previous sections, demonstrated that the protection of cultural heritage that is of great importance to humanity is a general interest of the international community as a whole. This explains the evolution of international law that has occurred in the past few decades as a result of which cultural heritage law has developed into a distinct branch of international law. The second issue relates to the role of states. As the principal actors on the world scene, states should act as agents of the international community to ensure that cultural heritage is properly preserved and managed on a similar footing as other global public goods, such as human and peoples’ rights and the environment.Footnote 124 The ideal world, of course, seldom exists. States often fail to act as true promoters of such common goods. For instance, Thailand and Cambodia were aware of the outstanding historical, artistic, and spiritual value of the Temple of Preah Vihear, yet they did not hesitate to subject its conservation to gloomy reasons of domestic politics, or to use it for military purposes.

Ironically, the relations between the two states have improved after the coup d’état in Thailand of May 2014, which has led to the establishment of a junta called the National Council for Peace and Order. Now both Cambodia and Thailand are well disposed to strengthen their ties. In effect, in December 2014 the government of Cambodia established the International Coordinating Committee (ICComm) for the Safeguarding and Development of the Temple of Preah Vihear.Footnote 125 Modelled on the ICComm for Angkor, the ICComm for the Temple of Preah Vihear sees the participation of Thailand and other states, including Belgium, France, and Japan. By ensuring the joint administration of the Temple and its gateways, this institution will boost peaceful relations between Cambodia and Thailand, and multiply opportunities for increased sustainable tourism.Footnote 126 In this manner, Cambodia and Thailand will meet their duty to co-operate—as enshrined in the WHC and restated by the ICJ in the 2013 Judgment—and will benefit from a site that has historically been considered as sacred to the people on both sides, and as one without borders.Footnote 127

Footnotes

*

Post-Doctoral Researcher (Art-Law Centre, Faculty of Law, University of Geneva, Switzerland). PhD (European University Institute, Italy); LLM (University College London, United Kingdom); JD (University of Siena, Italy). The author wishes to thank Eleni Polymenopoulou and Madeleine Frith for their comments on an earlier draft. Of course, the usual disclaimer applies.

1. Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, [1962] I.C.J. Rep. 6 [hereinafter 1962 Judgment].

2. CUASAY, Peter, “Borders on the Fantastic: Mimesis, Violence, and Landscape at the Temple of Preah Vihear” (1998) 32 Modern Asian Studies 849 at 849.

3. 16 November 1972, 1037 U.N.T.S. 151.

4. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment of 11 November 2013, [2013] I.C.J. Rep. 281 [hereinafter 2013 Judgment].

5. For a broader analysis of the ICJ as an appropriate forum to deal with disputes concerning cultural resources or to ensure the enforcement of cultural heritage law, see CHECHI, Alessandro, The Settlement of International Cultural Heritage Disputes (Oxford: Oxford University Press, 2014).

6. The term “global public good” is used in international law discourse to refer to values that are fundamental for the international community as a whole and that transcend the interests of individual states, such as peace, human and peoples’ rights, and biodiversity conservation. The idea of cultural heritage as a “global public good” can be traced back to the Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 U.N.T.S. 240 [hereinafter 1954 Convention], according to which “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world” (preamble). See FRANCIONI, Francesco, “Public and Private in the International Protection of Global Cultural Goods” (2012) European Journal of International Law 719; and GAJA, Giorgio, “The Protection of General Interests in the International Community” (2012) 364 Collected Courses of the Hague Academy of International Law 9 at 183–184.

7. CANÇADO TRINDADE, Antônio Augusto, “International Law for Humankind: Towards a New Jus Gentium (I): General Course on Public International Law” (2005) 316 Collected Courses of The Hague Academy of International Law 9 at 318–319.

8. BENZING, Markus, “Community Interests in the Procedure of International Courts and Tribunals” (2006) The Law and Practice of International Courts and Tribunals 369 at 374.

9. POISSONNIER, Ghislain, “Préah Vihéar: le temple de la discorde” (2012) Journal du droit international 115.

10. This corresponds to the crest of a hill or mountain range that separates neighbouring drainage basins, that is, the areas of land where surface water converges to a single point at a lower elevation.

11. 1962 Judgment, supra note 1 at 21–3.

12. Ibid., at 9.

13. Ibid., at 36–7.

14. Ibid., at 23. In their Dissenting Opinions, Judges Wellington Koo and Sir Percy Spender criticized the argument advanced by the Court that the Siamese authorities should have noticed that the Annex 1 map had awarded the Temple to Cambodia and should have lodged a formal protest with France. On the alleged acceptance of the Thai government, see also CHAN, Phil C.W., “Acquiescence/Estoppel in International Boundaries: Temple of Preah Vihear Revisited” (2004) Chinese Journal of International Law 421.

15. 1962 Judgment, supra note 1 at 36–7 (emphasis added).

16. Also, it resulted from the maps submitted to UNESCO that Cambodia claimed not only the entire promontory of Preah Vihear, but also the hill of Phnom Trap, which Thailand claimed; 2013 Judgment, supra note 4, paras. 25–6.

17. See WHC-08/32.COM/24Rev, Decision 32 COM 8B.102, 220–4.

18. UN Secretary Council, “Security Council Press Statement on Cambodia-Thailand Border Situation”, SC/10174, 14 February 2011. The Security Council collaborated closely with the Association of Southeast Asian Nations (ASEAN). On the role of ASEAN in the Temple of Preah Vihear dispute, see PHAN, Hao Duy, “Institutional Design and Its Constraints: Explaining ASEAN’s Role in the Temple of Preah Vihear Dispute” (2015) 1 Asian Journal of International Law 7.

19. WHC-11/35.COM.INF.20, Summary Records, 214–19, at 216–17.

20. Ibid., at 217. The Thai government went so far as to announce that it was determined to denounce the WHC. But the UNESCO Director-General never received the written instrument of denunciation.

21. Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, [2011] I.C.J. Rep. 537 [hereinafter 2011 Order], paras. 10 and 48.

22. Ibid., paras. 61–6, 69.

23. The Court further held that the hill of Phnom Trap lay outside the disputed area. 2013 Judgment, supra note 4, para. 98.

24. Ibid., paras. 81 and 85.

25. Ibid., paras. 89–91.

26. Ibid., para. 101.

27. “The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.”

28. 2013 Judgment, supra note 4, paras. 32–3.

29. Ibid., para. 34. It has been argued that the ICJ held that it was precluded from revising the 1962 Judgment in order to reinforce that original Judgment. See KATTAN, Victor, “The Ghosts of the Temple of Preah Vihear / Phra Viharn in the 2013 Judgment” (2015) 1 Asian Journal of International Law 16.

30. 2013 Judgment, supra note 4, para. 52.

31. Ibid., para. 71. This issue was addressed as Thailand claimed that Cambodia’s request was inadmissible because its real purpose was not to clarify the 1962 Judgment but to obtain a ruling that Cambodia had not requested and that the ICJ had not issued in 1962: that the Annex I map line constitutes the Parties’ common frontier in the Temple area.

32. “The real purpose of the request must be to obtain … [a] clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal”. Ibid., para. 55.

33. Art. 18 of the 1954 Convention and art. 2 common to the four Geneva Conventions of 1949 specify that they apply to all cases of “declared war or of any other armed conflict”, which may arise between two or more States Parties, even if the state of war is not recognized by one of them, and to “all cases of partial or total occupation of the territory of a High Contracting Party …”.

34. 2011 Order, supra note 21, paras. 48–51. See also Poissonnier, supra note 9 at 125–7.

35. See arts. 6(1) and 7, WHC.

36. See CARDUCCI, Guido, “Articles 4–7. National and International Protection of the Cultural and Natural Heritage” in Francesco FRANCIONI (with the assistance of Federico LENZERINI), ed., The 1972 World Heritage Convention: A Commentary (Oxford: Oxford University Press, 2008), 103 at 113–115, 117–18.

37. Federico LENZERINI, “Articles 30–3 and 35–8. Final Clauses” in Francioni, supra note 36, 345 at 348.

38. LENZERINI, Federico, “Article 12. Protection of Properties Not Inscribed on the World Heritage List” in Francioni, supra note 36, 201 at 207.

39. Carducci, supra note 36 at 125.

40. MUSITELLI, Jean, “World Heritage, Between Universalism and Globalization” (2002) International Journal of Cultural Property 323.

41. FORREST, Craig, International Law and the Protection of Cultural Heritage (Abingdon: Routledge, 2010), 278.

42. See FRANCIONI, Francesco and LENZERINI, Federico, “The Future of the World Heritage Convention: Problems and Prospects” in Francioni, supra note 36, 401 at 402.

43. In effect, as shown, art. 6(3) was mentioned by the ICJ in para. 106.

44. This provision is restated in the Operational Guidelines for the Implementation of the WHC (WHC, 13/01, July 2013), paras. 179 and 182. Inscription on the Danger List allows expedited allocation of resources under the Fund (see arts. 15–18, WHC).

45. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, 8 June 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

46. See art. 53 of Protocol I, and art. 16 of Protocol II.

47. See supra note 6. This treaty was built upon the Regulations Annexed to The Hague Convention (II) with Respect to the Laws and Customs of War on Land of 29 July 1899 ((1907) American Journal of International Law 66); and the Regulations Annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907 ((1908) American Journal of International Law 165).

48. Art. 4(2) provides that the obligations contained in art. 4(1) can be waived “in cases where military necessity imperatively requires such a waiver”.

49. See arts. 8(1) and (6). The International Register’s onerous requirements meant that it has never included more than a handful of properties. See UNESCO Doc. CLT/CIH/MCO/2008/PI/46 (2000), online: UNESCO <http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/the-hague-convention/>.

50. Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 U.N.T.S. 358.

51. Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999, 38 I.L.M. 769 (1999).

52. For an overview of the ICTY jurisprudence concerning cultural heritage, see LENZERINI, Federico, “The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage” in Federico FRANCIONI and James GORDLEY, eds., Enforcing Cultural Heritage Law (Oxford: Oxford University Press, 2013), 40; and FRULLI, Micaela, “Advancing the Protection of Cultural Property Through the Implementation of Individual Criminal Responsibility: The Case-Law of the International Criminal Tribunal for the Former Yugoslavia” (2005) Italian Yearbook of International Law 195.

53. See e.g. Prosecutor v. Jokić, 18 March 2004, [2004] IT-01-42/1-S; and Prosecutor v. Strugar, 31 January 2005, [2005] IT-01-42-PT.

54. Ibid., para. 53. Of course, this jurisprudence is limited in that it concerns situations where the protection of cultural heritage is subjected to the concept of military necessity and the distinction between military and non-military objectives. In this respect see FRANCIONI, Francesco, “Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity” (2003–04) Michigan Journal of International Law 1209 at 1219.

55. The ECCC were established with the Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003, online: ECCC <http://www.eccc.gov.kh/en/document/legal/agreement>. The ECCC consist of a national court composed of both national and international judges which has the competence to prosecute members of the Khmer Rouge for serious violations of Cambodian criminal law and international law.

56. Closing Order (Indictment) in Case 002, concerning Noun Chea, Ieng Sary, Khieu Samphan and Ieng Thirith, paras. 1317, online: ECCC <http://www.eccc.gov.kh/en/case/topic/2>.

57. Ibid., paras. 210, 321, 740–56, 1420-1.

58. On this issue, see Chechi, supra note 5 at 256–8, 267–70.

59. For instance, the ICTY has affirmed in various occasions that art. 3(d) of the ICTY Statute is a rule of humanitarian law that reflects customary international law (see Strugar, supra note 53), and that the Regulations annexed to the 1907 Hague Convention (supra note 47) as well as the 1954 Convention belong to customary international law (see Prosecutor v. Kordic & Cerkez, 26 February 2001, [2001] IT-95-14/2-T, para. 206; and Prosecutor v. Tadić, 2 October 1995, [1995] IT-94-1-I, para. 98).

60. See e.g. SCOVAZZI, Tullio, “Diviser c’est détruire: Ethical Principles and Legal Rules in the Field of Return of Cultural Properties” (2010) Rivista di diritto internazionale 341 at 351; SANDHOLTZ, Wayne, Prohibiting Plunder. How Norms Change (Oxford: Oxford University Press, 2007), 223 at 256–257; and FRANCIONI, Francesco, “Au-delà des traités: l’émergence d’un nouveau droit coutumier pour la protection du patrimoine culturel” (2007) Revue Générale de Droit International Public 19 at 29.

61. The ICC Statute defines as war crimes the “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (art. 8(2)(a)(iv)). Additionally, arts. 8(2)(b)(ix) and 8(2)(e)(iv) classify as war crimes the “[i]ntentionally directing [of] attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments … provided they are not military objectives” with regard to international and non-international armed conflicts, respectively.

62. ICC Statute, arts. 11 and 12.

63. ICC, “ICC Prosecutor Opens Investigation into War Crimes in Mali: ‘The Legal Requirements Have Been Met. We Will Investigate’” (16 January 2013) ICC-OTP-20130116-PR869, online: ICC <http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/Pages/pr869.aspx>.

64. ICC, “ICC Prosecutor Fatou Bensouda on the Malian State Referral of the Situation in Mali Since January 2012” (18 July 2012) ICC-OTP-20120718-PR829, online: ICC <http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/Pages/pr829.aspx>.

65. Poissonnier, supra note 9 at 116–17.

66. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 13 November 2013, Separate Opinion of Judge Cançado Trindade, para. 65 (emphasis in the original).

67. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, Separate Opinion of Judge Cançado Trindade. Here the Judge praised the creation of the provisional demilitarized zone: “[The] reassuring effects [of the provisional demilitarized zone] … are that they do extend protection not only to the territorial zone at issue, but also … to the life and personal integrity of human beings who live or happen to be in that zone or near it, as well as to the Temple of Preah Vihear itself … and all that the Temple represents” (para. 66).

68. Ibid., paras. 96–100.

69. Ibid., para. 113.

70. Ibid., para. 115 (emphasis in the original).

71. Second and third preambular paragraphs.

72. “Without prejudice to the provisions of the [1954 Convention] and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples” (emphasis added).

73. “Without prejudice to the provisions of the [1954 Convention], it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples” (emphasis added).

74. 17 October 2003.

75. Prosecutor v. Jokić, supra note 53, paras. 46 and 51.

76. Ibid., para. 51.

77. Prosecutor v. Strugar, supra note 53.

78. Ibid., para. 232.

79. Prosecutor v. Hadžihasanović & Kubura, 15 March 2006, IT-01-47, para. 63.

80. Lenzerini, supra notes 52, 53.

81. See supra note 31 and related text.

82. “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

83. See BERMAN, Franklin, “The International Court of Justice as an ‘Agent’ of Legal Development?” in Christian J. TAMS and James SLOAN, eds., The Development of International Law by the International Court of Justice (Oxford: Oxford University Press, 2013), 7.

84. HENCKAERTS, Jean-Marie and DOSWALD-BECK, Louise, eds., Customary International Humanitarian Law. Practice, Vol. II, Part 1 (Cambridge: Cambridge University Press, 2005) 730.

85. ZAGATO, Lauso, “La protezione dei beni culturali nei conflitti armati: il rapporto tra diritto generale e accordo nel solco del secondo Protocollo 1999” in Alberico Gentili, La salvaguardia dei beni culturali nel diritto internazionale, Atti del Convegno, 22–23 settembre 2006 (San Ginesio: Centro internazionale di studi Gentiliani, 2008), 341 at 362. This author underlines that during the Vietnam War the US avoided bombarding the sites of Angkhor (Cambodia) and Hué (in the then North Vietnam), whilst during the Gulf Wars no state resorted to the derogation of military necessity to target the sites of Ur and Nineveh. On the conduct of hostilities by coalition forces during the First Gulf War, see also Sandholtz, supra note 60 at 194–6.

86. LAUTERPACHT, Hersch, The Development of International Law by the International Court (New York: Stevens & Sons, 1958) 4.

87. On the Court’s meagre case-law on cultural rights, see POLYMENOPOULOU, Eleni, “Cultural Rights in the Case Law of the International Court of Justice” (2014) Leiden Journal of International Law 447.

88. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011. The ICJ held that it did not have jurisdiction over the merits of the case because Georgia had not met the procedural precondition for ICJ jurisdiction under art. 22 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which required Georgia to negotiate with Russia regarding their dispute under CERD or to resort to CERD procedures prior to initiating proceedings at the ICJ (paras. 167–83).

89. Memorial of Georgia, Vol. 1, 2 September 2009, para. 3.83.

90. Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment of 10 February 2005. The Prince of Liechtenstein also lodged an—unsuccessful—application with the European Court of Human Rights: Prince Hans-Adam II of Liechtenstein v. Germany, Application no 42527/98, Decision of 12 July 2001.

91. The ICJ dismissed the action for lack of jurisdiction ratione temporis because the European Convention for the Peaceful Settlement of Disputes, 29 April 1957, E.T.S. No. 23, upon which Liechtenstein based the Court’s jurisdiction, entered into force between the two states only in 1980, i.e. long after the time when the cause of action accrued.

92. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007.

93. Ibid., paras. 335–44. Moreover, the ICJ endorsed the observation made by the ICTY Trial Chamber in Krstić (Judgment of 2 August 2001, IT-98-33-T, para. 580): “where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.”

94. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015, paras. 386–90.

95. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012.

96. Ibid., paras. 109–20.

97. 2 December 2004, 44 I.L.M. 801 (2005), not yet in force.

98. “The following categories … of property of a State shall not be considered as property specifically in use or intended for use by the State for other than government non-commercial purposes under article 19, subparagraph (c): … (d) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale; (e) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.”

99. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Separate Opinion of Judge Weeramantry, [1996] I.C.J. Rep. 226 at 429.

100. Ibid., 466–7.

101. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010.

102. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004.

103. See, respectively, Written Contribution of the Authors of the Unilateral Declaration of Independence Regarding the Written Statements of 17 July 2009 (paras. 2.28, 3.34–3.35); and Written Statement Submitted by Palestine of 29 January 2004 (paras. 333–7).

104. In this respect see also CHESTERMAN, Simon, “The International Court of Justice in Asia: Interpreting the Temple of Preah Vihear Case” (2015) 1 Asian Journal of International Law 1.

105. LAUTERPACHT, Elihu, “Principles of Procedure in International Litigation” (2009) Collected Courses of The Hague Academy of International Law 345 at 485.

106. COGAN, Jacob KATZ, “Competition and Control in International Adjudication” (2008) Virginia Journal of International Law 411 at 419–426.

107. Francioni, , supra note 54 at 1221.

108. FRANCIONI, Francesco, “The Human Dimension of International Cultural Heritage Law: An Introduction” (2011) European Journal of International Law 9 at 10.

109. Lenzerini, , supra note 52 at 45–46.

110. At all events, Cambodia was a party to all the above-mentioned treaties, whereas Thailand has still to ratify the Additional Protocols of 1977 (supra note 45) and the Second Protocol of 1999 (supra note 51): see online: ICRC <http://www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountry.xsp>. However, the obligations contained in the Additional Protocols can be imposed upon states as a matter of general international law.

111. See CHAMBERLAIN, Kevin, War and Cultural Heritage (Leicester: Institute of Art and Law, 2004) at 35–39, 47–51; and CARSTEN, Anne-Marie, “The International Legal Protection of World Heritage Sites During Armed Conflict” (2013) 5 Transnational Dispute Management, online: Transnational Dispute Management <http://www.transnational-dispute-management.com/article.asp?key=1996>.

112. CARDUCCI, Guido, “The 1972 World Heritage Convention in the Framework of other UNESCO Conventions on Cultural Heritage” in Francioni, supra note 36, 363 at 365–367.

113. It must also be considered that the definition of property protected by the WHC is narrower than that given in the 1954 Convention as the former is only concerned with immovable property.

114. Chamberlain, supra note 111 at 30.

115. Pursuant to art. 12, the Parties to a conflict must ensure the immunity of the property under “enhanced protection” by refraining from making it the object of attack or from any use of the property or its immediate surroundings in support of military action.

116. Operational Guidelines for the Implementation of the WHC, supra note 44, para. 41.

117. Guidelines for the Implementation of the 1999 Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 22 March 2012, CLT-09/CONF/219/3 REV. 4, paras. 36, 14.

118. Decision 7.COM 3, online: UNESCO <http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/synergies/>, para. 3.

119. Decision 7.COM 6, online: <http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/synergies/>, paras. 4–5.

120. See online: UNESCO <http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/synergies/>.

121. Only five states have requested the granting of enhanced protection: Azerbaijan, Belgium, Cyprus, Italy, and Lithuania. See online: UNESCO <http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/protection-of-cultural-property/enhanced-protection/>.

122. See supra note 53 and related text.

123. See GONZALEZ, Ariel W., “Great Expectations? Towards an Effective Application of the Regime of Enhanced Protection in the Second Protocol to the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict” in Nout Van WOUDENBERG and Liesbeth LIJNZAAD, eds., Protection of Cultural Property in Armed Conflict (The Hague: Martinus Nijhoff Publishers, 2010), 59 at 61–65.

124. Francioni, supra note 6.

125. The establishment of an International Coordinating Committee was requested in 2008 by the WHC Committee at its 32nd session (Quebec City) with Decision 32 COM 8B 102 (para. 14).

126. At the time of writing, tourists are allowed at the site, which is no longer guarded by armed soldiers, thanks to an increase in transportation facilities in both countries. This is according to personal communication with a public servant of the Office of the Council of Ministers of the Thai government.

127. See ROTH, William, “Temple Dispute: A Way Out of the Impasse” (22 July 2008) Bangkok Post, online: Bangkok Post <http://ki-media.blogspot.ch/2008/07/temple-dispute-way-out-of-impasse.html>.

* Post-Doctoral Researcher (Art-Law Centre, Faculty of Law, University of Geneva, Switzerland). PhD (European University Institute, Italy); LLM (University College London, United Kingdom); JD (University of Siena, Italy). The author wishes to thank Eleni Polymenopoulou and Madeleine Frith for their comments on an earlier draft. Of course, the usual disclaimer applies.