Access to World Heritage Sites: Thailand and the Obligation to Allow Access to the Temple of Preah Vihear

On 11 November, 2013, the ICJ announced its judgment in the Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand).

It ruled that “Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear […], and that, in consequence, Thailand was under an obligation to withdraw from that territory the Thai military or police forces, or other guards or keepers, that were stationed there.”(Para. 108)

But the court went further than that. Indirectly referring to the fact that the natural access to the temple is from the Thai side, the court noted that the temple was “a site of religious and cultural significance for the peoples of the region and is now listed by UNESCO as a world heritage site.” Invoking good faith obligations that states have with respect of the territorial integrity of all other states, as well as the World Heritage Convention that calls on the two neighbors to co-operate “between themselves and with the international community in the protection of the site as a world heritage,” as well as not to “take any deliberate measures which might damage directly or indirectly” such heritage, the court “wish[ed] to emphasize the importance of ensuring access to the Temple from the Cambodian Plain.” (para. 106)

While the last statement carefully stops short of framing the question of access to the temple as a legal obligation, one cannot escape the conclusion that in the court’s view, a state’s sovereignty may be subjected to certain obligations toward others and towards “the international community,” at least as far as the right to access to world heritage sites in neighboring countries is concerned.

Here are the relevant paragraphs of the judgment:

“105. Nor is it necessary for the Court to address the question whether the obligation imposed on Thailand by the second operative paragraph was a continuing obligation, in the sense maintained by Cambodia. In the present proceedings, Thailand has accepted that it has a general and continuing legal obligation to respect the integrity of Cambodian territory, which applies to any disputed territory found by the Court to be under Cambodian sovereignty. Once a dispute regarding territorial sovereignty has been resolved and uncertainty removed, each party must fulfil in good faith the obligation which all States have to respect the territorial integrity of all other States. Likewise, the Parties have a duty to settle any dispute between them by peaceful means.

106. These obligations, which derive from the principles of the Charter of the United Nations, are of particular importance in the present context. As is clear from the record of both the present proceedings and those of 1959-1962, the 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 (see paragraphs 25-27 above). 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.

This position is in line with the Order of Provisional Measures of Protection the court issued in 2011. That Order noted that “Cambodia must, in all circumstances, have free access to the Temple and must be able to provide fresh supplies to its non-military personnel,” and therefore indicated that “Thailand must take all necessary measures in order not to obstruct such free and uninterrupted access.” (Para. 65) (further on this interim order see here).