Julia Carrano, George Washington University School of Law '10, spent a summer working for Heritage Watch in Cambodia...
fter my first year of law school, I spent a month in Phnom Penh, Cambodia with Heritage Watch, a non-profit organization dedicated to preserving Cambodian cultural heritage sites and fostering sustainable development. As an intern, my job was to synthesize relevant laws and other legal documents into a database that could be easily accessed by those needing to know the rules governing the use of cultural property from Cambodia. My goal going into the project was to assess how Cambodia's growing problem with cultural heritage preservation could benefit from a coherent legal approach.
Like many other nations, Cambodia faces problems of looting and illicit sales of its cultural artifacts. The problem of preservation has been exacerbated by Cambodia's history of political instability, which has prevented the nation from establishing adequate legal protections for important sites and objects. During the totalitarian regime of the Khmer Rouge, the country's political and legal systems were destroyed, and educated individuals were either killed or forced to flee the country. As a result, the entire nation suffered culturally and economically. Further violence and destruction continued as the Khmer Rouge planted landmines throughout the countryside, and it was not until a civil law system was put into place in 1993 that Cambodia began to regain peace and stability.
After 1993, Cambodia began attempting to protect its cultural legacy. At the same time, the country was also attempting to solve the problems of rapid and unsupervised economic development, devastated cultural and educational systems, and the lack of functioning legislative or judicial bodies. In 1996, the Cambodian legislature, the Chbab, passed one major piece of legislation concerning cultural heritage preservation, the Law on the Protection of Cultural Heritage (LPCH), which outlines the limited property rights applicable to cultural property, the way these rights can be used, and the appropriate sanctions for violations of the law. While the law does not directly nationalize cultural property, an approach taken by some countries, such as Peru and Mexico, it does severely restrict an owner's property rights, particularly if the property is classified as an artifact by the relevant authorities. The LPCH is a document that, in my opinion, represents a well-reasoned middle ground between a draconian law preventing the selling of any cultural artifacts and weak legislation treating cultural heritage like any other type of property.
Still, I quickly discovered that there is a problem of consistency within this legislation (Chbab). The LPCH is not the only governing authority on the regulation of cultural property, and other laws overlap in subject matter. In addition to the LPCH, there are numerous legal authorities affecting cultural heritage preservation in Cambodia, such as the Constitution; executive decrees; criminal code provisions governing theft and importation regulations; land law provisions; customs regulations; and international treaties to which Cambodia is a signatory. Additionally, the Cambodian executive has considerable lawmaking authority, since laws are only infrequently passed by the legislative branch and usually do not address their subject matter in much detail. Therefore, much of the law actually comes from sub-decrees (Anu-Kret) adopted by the Council of Ministers or proclamations (Prakas) from individual ministers. Authorities within the ministry also use the circular (Sarachor) to clarify points of law.
Authorities differ, because while some mention cultural heritage regulation, others do not define it at all or provide a definition which deviates from that set forth in the LPCH. These laws also fail to establish consistent penalties. For example, it is relevant to know whether cultural property has to be a certain age and whether the definition only includes man-made objects, but not all authorities are clear on these distinctions. In addition, the Cambodian legal system makes it extremely difficult to locate the relevant executive documents, particularly if you do not read Khmer, which presumably many in the antiquities market or international community do not. For instance, I could find no English translation of the major implementing Sub-decree 98 Concerning the Execution of the Protection of Cultural Patrimony. Even for major pieces of legislation, there are usually only unofficial translations. However, there is still the problem of enforcement, even if one could distill all the potentially relevant and conflicting authorities down to a coherent policy on cultural heritage preservation. The LPCH system of classification sounds rational, but it may have little value in actual practice.
This confusion in the Cambodian legal system has an important implication beyond the borders of the country. The looted objects do not, for the most part, stay on the mantels of Cambodians, but instead are exported to developed countries, particularly the US. It is difficult to successfully prosecute an importer of illicit cultural property in the US because under the National Stolen Property Act (NSPA) one must prove that the item was indeed "stolen" in the country of origin. US courts must assess Cambodian ownership laws, including all relevant decrees mentioned above, and the extent to which these laws and decrees are enforced in practice. Thus, unclear and overly-complex Cambodian legislation makes it difficult for courts to reach a satisfying conclusion. US courts must conclude either that the Cambodian government intended to create national ownership of the cultural item in question, meaning that the item is "stolen" for purposes of criminal prosecution, or that restrictions on exporting and trading cultural property in Cambodia do not bestow national ownership, and the US has no basis for prosecution.
My time with Heritage Watch revealed exactly why, from an international perspective, clear, consistent, and enforceable domestic cultural heritage laws are vital for the successful protection of cultural property. Ultimately, my internship led me to ask a more fundamental question which is considered less often: Why is the protection of cultural heritage worth the time, money, and effort, particularly in a developing nation like Cambodia where there are so many other problems? During my time in Cambodia, I witnessed some of the answers to that question. Tourism has a strong impact on the national economy, and cultural preservation gives citizens a sense of identity and community that has been forgotten through colonization, war, and poverty. Most Cambodians have only a vague sense of the richness and sophistication of their past, and while they might be proud of being from the country of Angkor Wat, they have no true understanding of its importance. Cambodians need education that presents the nuances of their history, showcasing their struggles, accomplishments, and the injustices they have faced. This education can form a bond among citizens that will go much deeper than pride or nostalgia and it must be taught now, because if these cultural sites and treasures are lost, there will be no second chance to recover them.Mentioned in this Article:
Law on the Protection of Cultural Heritage
National Stolen Property Act
Photo Credits: Julia Carrano