The treaties of global scope concluded to date in the field of culture1 aim at bringing two fundamental messages. First, culture contributes to the maintenance of peace. Second, the protection and promotion of culture is a general interest of the international community as a whole.
As outlined in Article 1, paragraph 2, of the Charter, one of the purposes of the United Nations is to achieve international cooperation in solving international problems of cultural character. The United Nations is furthermore required, under Article 55 of the Charter, to promote, inter alia, international cultural and educational cooperation, with a view to the creation of conditions of stability and well-being that are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.2 The drafters of the Charter agreed that the mandate of the United Nations, established primarily for maintaining international peace and security, should also include those conditions—economic, social, and cultural—that are necessary to the existence of a viable peace.3
Most of the world treaties in the field of culture have been concluded within the framework of the United Nations Educational Scientific and Cultural Organization (p. 308) (UNESCO), an international organization linked to the United Nations by a relationship agreement (UN specialized agency), concluded in 1946.
1 The Concept of Cultural Heritage
The Constitution of UNESCO, adopted in 1945, provides, in its Article I, paragraph 1, that the purpose of this specialized agency is to contribute to peace and security by promoting collaboration among the nations through education, science, and culture in order to further universal respect for justice, the rule of law, human rights, and fundamental freedoms. The close relationship between peace and culture is clearly set forth in the preamble of the UNESCO Constitution, whereby states parties declare
That since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed;
That ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war; [ … ]
That a peace based exclusively upon the political and economic arrangements of governments would not be a peace which could secure the unanimous, lasting and sincere support of the peoples of the world, and that the peace must therefore be founded, if it is not to fail, upon the intellectual and moral solidarity of mankind.
The concept of “cultural heritage” can be understood in many different meanings. To realize its purposes, UNESCO is called upon, inter alia, to maintain, increase, and diffuse knowledge “by assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions” (Article I, paragraph 2(c), UNESCO Constitution). However, at the World Conference on Cultural Policies, convened by UNESCO and held at Mexico City in 1982, states agreed to give the concept of cultural heritage a quite broader meaning, as the expression of the spirituality and creativity of men and peoples:
The cultural heritage of a people includes the works of its artists, architects, musicians, writers and scientists and also the work of anonymous artists, expressions of the people’s spirituality, and the body of values which give meaning to life. It includes both tangible and intangible works through which the creativity of that people finds expression: languages, rites, beliefs, historic places and monuments, literature, works of art, archives and libraries” (paragraph 23 of the Mexico City Declaration on Cultural Policies).4
(p. 309) The adoption in the first years of the twenty-first century of three new cultural conventions within the framework of UNESCO is a sign of a continued trend toward widening the concept of cultural heritage.5
Besides its intrinsic value, as the expression of spirituality and creativity, cultural heritage has also an economic dimension. It offers important opportunities for generating sustainable development, including through cultural activities and tourism. It may be difficult to strike a fair balance between the intrinsic and the economic aspects of cultural heritage. For instance, it has been remarked that commercialization of elements of the intangible cultural heritage6 is not a priori a disqualifying factor, highlighting the vital role of this heritage as a factor of economic development in some communities. However, as excessive commercialization could distort traditional cultural customs or expressions, it is necessary that such processes remain under the control of the communities that create and transmit the heritage and not of private companies.7
Both the high participation of states in most of the UNESCO cultural treaties and international practice in general confirm that many of the provisions included in them have today become part of customary international law.8 Despite the political vicissitudes that have affected UNESCO in recent years,9 the continued importance of its mandate and achievements in the area of treaty-making in the cultural field remains undoubted.
2 The Protection of Cultural Heritage during Conflicts
The Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague in 1954 (“the 1954 Convention”)10 is the first treaty relating to cultural heritage concluded within the framework of UNESCO. In the preamble of the (p. 310) 1954 Convention, the parties recognize that cultural property has suffered grave damage during recent armed conflicts and that, because of the developments in the technique of warfare, it is in increasing danger of destruction. They also emphasize that the preservation of the cultural heritage is of great importance for all peoples of the world and declare themselves convinced “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.”
The 1954 Convention requires states parties to refrain from acts of hostility directed against cultural properties and from any use of such properties for purposes that are likely to expose them to destruction or damage in the event of armed conflict. Any form of theft, pillage, misappropriation, and vandalism of cultural property is prohibited. The First Protocol, which was adopted on the same day as the Convention,11 prohibits the export of cultural properties from an occupied territory and binds parties to return such properties at the close of hostilities in the event that they have been exported.
The obligation to refrain from any act of hostility directed against cultural property may be waived only in cases where military necessity imperatively requires such a waiver. Special protection is granted to a limited number of refuges intended to shelter movable cultural property in the event of armed conflict and of centers containing monuments and other immovable cultural property of very great importance, provided that they have been entered in the International Register of Cultural Property under Special Protection, held by UNESCO. States parties are required to ensure the immunity of cultural property under special protection from any act of hostility. Such immunity may be withdrawn only in exceptional cases of unavoidable military necessity, and only for such time as that necessity continues. Moreover, an even stronger protection—although not amounting to absolute immunity from acts of warfare—is granted to properties that have been included in the List of Cultural Property under Enhanced Protection, as established under the Second Protocol (The Hague, 1999)12 to the 1954 Convention. The conceptual nuances between “protection,” “special protection,” and “enhanced protection” show the inherent difficulties encountered in any attempt to find a balance between the needs of cultural heritage, on one hand, and those of so-called military necessity, on the other.
The customary obligation to return cultural properties that have been removed as a consequence of conflicts13 has been confirmed by the United Nations Security Council. Under resolution 1483 (2003) of 22 May 2003, the Council decided that all member states were bound to
take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of Resolution 661 (1990) of 6 August 1990 [ … )] (para. 7).
Such an obligation was restated and enlarged by resolution 2199 (2015) of 12 February 2015, whereby the Security Council also noted with concern
that ISIL [the Islamic State in Iraq and the Levant], ANF [the Al-Nusrah Front] and other individuals, groups, undertakings and entities associated with Al-Qaida, are generating income from engaging directly or indirectly in the looting and smuggling of cultural heritage items from archaeological sites, museums, libraries, archives, and other sites in Iraq and Syria, which is being used to support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks (para. 16).
Recently, under resolution 2347 (2017) of 24 March 2017, the Council took a further step, by pointing out the existence of a vicious circle. It explicitly stated that the destruction and looting of cultural properties, besides being a likely consequence of war, can also be in itself a cause of war. The Council emphasized
that the unlawful destruction of cultural heritage, and the looting and smuggling of cultural property in the event of armed conflicts, notably by terrorist groups, and the attempt to deny historical roots and cultural diversity in this context can fuel and exacerbate conflict and hamper post-conflict national reconciliation, thereby undermining the security, stability, governance, social, economic and cultural development of affected States (preamble).
The first two above-mentioned Security Council resolutions were adopted under Chapter VII of the Charter (action with respect to threats to the peace, breaches of the peace, and acts of aggression).
3 Culture as a General Interest of the International Community
Besides the 1954 Convention, the other UNESCO cultural treaties are also based on the assumption that the protection and promotion of cultural properties is not only an obligation for the state in whose territory they are located, as they represent its history and identity, but also represents a general interest of the international community as a whole. Through the adoption of these treaties, which are described hereinafter, states parties have recognized culture as a common heritage of humankind.
The preamble of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 1970)14 recalls that, in order to avert the dangers posed by theft, clandestine excavation, and illicit export of cultural properties, “it is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage and that of all nations.”
The 1970 Convention stresses that “cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting” (preamble). As was pointed out as early as the end of the eighteenth century by Quatremère de Quincy, to remove one element from its original cultural context could be the equivalent of destroying it (“diviser, c’est détruire”).15 This is particularly evident for archaeological properties, as their looting implies the destruction of the site, the loss of information, and the dispersion of irreplaceable and finite artifacts. For instance, when an object is stolen from a tomb, not only can it be damaged forever, but the site is also disrupted. Even where the object is taken away intact, it is uprooted from the context in which it belongs, losing its identity and real meaning. The other objects in the same setting, which have been left by the looters either deliberately or by chance, also lose their original significance, as it becomes impossible to reconstruct the whole context that has been altered in its true composition.
However, it seems that the substantive part of the 1970 Convention does not correspond to the ambitious objectives set forth in its preamble. The obligations of the importing state do not match those of the exporting state. While the latter is bound to prohibit the export of cultural objects not accompanied by an export certificate, the former is not required to prohibit the import of such objects if not accompanied by such a certificate. The obligation to return cultural objects is limited to those that have been stolen from museums or similar institutions, without covering cases where private individuals or entities have been the victims of the crime. The return is also subject to payment of just compensation to an innocent purchaser or to a person who has valid title to the property (Article 7, b, ii). Illegally excavated archaeological objects appear to be excluded from the application of the 1970 Convention, as states parties are bound to take appropriate steps to recover and return cultural objects stolen from a museum or a religious or secular public monument or similar institution in another state party, “provided that such property is documented as appertaining to the inventory of that institution.” But there are no inventories underground.
(p. 313) To date, attempts to improve and update the 1970 Convention have produced no results.16
The 1970 Convention is complemented by the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)17 which primarily deals with the private law aspects of illegal movements of cultural properties. The UNIDROIT Convention represents a more advanced instrument, providing enhanced protection to the interests of the original owners of removed cultural properties. For instance, Article 4, paragraph 1 of this Convention stipulates that the possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation only if he neither knew nor ought reasonably to have known that the object was stolen, and can prove that he exercised due diligence when acquiring the object.18 However, the UNIDROIT convention has so far been ratified by only a limited number of states.19
In cases not covered by the relevant conventions, including those where the movement of cultural properties has taken place before the entry into force of any treaty applicable to the states involved, present international practice shows that an evolutionary trend is developing in customary international law.20 According to this trend, claims relating to the return of removed cultural properties should be addressed by the states concerned in order to achieve an equitable solution, taking into account all the relevant circumstances, such as, inter alia:
- the factors surrounding the removal of the cultural property from the state of origin, in particular the legality of the removal under the law of the state of origin or the substantive injustice of the removal in the light of ethical principles;
- the importance of the cultural property for the state of origin, in particular its emblematic character;
- the harm to the integrity of the cultural context from which the cultural property was removed;
- the amount of time since the cultural property was removed from the state of origin;
- the appreciation for and the care used to preserve the cultural property by the state of destination;
- the state of origin’s commitment to care for the preservation of the cultural property if it is returned to it.
According to the preamble of the Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972),21 “the deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world.” For this reason, “in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an effective complement thereto.”
The 1972 Convention applies to both cultural and the natural heritage. The former is defined for the purposes of this instrument as including only immovable properties, such as monuments,22 groups of buildings,23 and sites.24
The 1972 Convention has an exclusive character, insofar as it applies to properties that have an “outstanding universal value.” As pointed out in the Operational Guidelines for its implementation, the 1972 Convention “is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint” (Op. Guid. 52). The concept of outstanding universal value is defined as “cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity” (Op. Guid. 49).
The 1972 Convention sets forth two lists, namely the World Heritage List and the List of World Heritage in Danger. On the basis of a decision of the World Heritage Committee,25 properties of “outstanding universal value” can be entered on either of the (p. 315) two lists if they meet a number of criteria established by the World Heritage Committee,26 comply with the conditions of authenticity and integrity, and have an adequate protection and management system. The properties that may be entered on the List of World Heritage in Danger are those threatened by serious and specific dangers, such as “the threat of disappearance caused by accelerated deterioration, large-scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods, and tidal waves” (Article 11, paragraph 4). The 1972 Convention has established a World Heritage Fund to be used for purposes determined by the World Heritage Committee, with priority given to those properties included in the List of World Heritage in Danger.
To date (January 2019), 1,092 properties have been entered on the lists (845 cultural, 209 natural, and 38 mixed), 54 of which are on the List of World Heritage in Danger. As the records of its activities shows, the World Heritage Committee faces a significant challenge in establishing and maintaining a World Heritage List that is adequately representative, balanced, and credible.
The 1972 Convention seeks to achieve a balance between the interest of individual states and the interest of humankind. On the one hand, the inclusion of a property in the World Heritage List requires the consent of the state on the territory of which it is located (Article 11, paragraph. 4). On the other, the inclusion of a property on the List of the World Heritage in Danger and the removal of it from either of the two lists can be decided by the World Heritage Committee even without the consent of the territorial state. In particular, the removal from the World Heritage List can be seen as a moral sanction in cases where it is the consequence of a deliberate action by the state concerned affecting the outstanding universal value of the property. So far, the World Heritage Committee removed two properties from the World Heritage List, namely the natural property “Arabian Oryx Sanctuary” (Oman), in 2007, due to the reduction of the size of the protected area by 90 percent, as well as the cultural property “Dresden Elbe Valley” (Germany), in 2009, due to the construction of a four-lane bridge within it.
The World Heritage Committee monitors the actions taken by states parties in application of the 1972 Convention and the state of the conservation of listed properties through the review of periodic reports that states parties are required to submit. A special process of so-called reactive monitoring is also provided for in the Operational Guidelines.27
It should be noted that the listing of a property in the World Heritage List may also have an effect on the gravity of the sentences imposed on individuals for war crimes in international criminal proceedings. This was the case of Miodrag Jokić and Pavle Strugar, convicted by the International Criminal Tribunal for the former Yugoslavia for (p. 316) the bombing of the Old City of Dubrovnik in Croatia,28 and of Ahmad Al Faqi Al Mahdi, convicted by the International Criminal Court for the destruction of mausoleums in Timbuktu in Mali.29
The Convention on the Protection of the Underwater Cultural Heritage (Paris, 2001) (“the 2001 Convention”) acknowledges in its preamble the importance of underwater cultural heritage as an integral part of the cultural heritage of humanity, and a particularly important element in the history of peoples, nations, and their relations with each other. It follows that the responsibility of preserving and protecting this heritage rests with all states.
The 2001 Convention sets forth a legal framework for the prevention of the looting of properties, which, if located beyond the 12-mile limit of the territorial sea, can be the result of the application of the traditional regime of freedom of the high seas. The key challenge in this regard stems from a provision (Article 303, paragraph 3) in the United Nations Convention on the Law of the Sea (Montego Bay, 1982) which, at least in the English official text, subjects the duty to protect objects of an archaeological and historical nature found at sea to “the law of salvage and other rules of admiralty.” In a number of common law countries, and in particular in the United States, admiralty law has been enlarged by court decisions to cover also activities related to ships that have been lost for hundreds or thousands of years, together with their cargo. In particular, the law of salvage gives the salvor a lien (or right in rem) over the wreck, and the law of finds allows a person who discovers a wreck that has been abandoned to become its owner. This in practice corresponds to a first-come-first-served approach that only plays in favor of the commercial interest of private treasure hunters, and neither ensures the preservation of the heritage for the benefit of humankind nor takes into consideration the special position of states that have a link with that heritage.
With the aim of preventing the looting of the heritage, the 2001 Convention provides, in general terms, that states parties are bound to “preserve underwater cultural heritage for the benefit of humanity” (Article 2, paragraph 3) and that “underwater cultural heritage shall not be commercially exploited” (Article 2, paragraph 7), as this is fundamentally incompatible with the protection and proper management of it (Rule 2 of the Annex). In order to facilitate decision-making on how best to protect the heritage, the 2001 Convention sets forth a procedural mechanism that seeks to ensure cooperation among those states with a verifiable link to the heritage, involving three steps (reporting, consultations, and urgent measures).
(p. 317) Regrettably, the message of cooperation for the protection of an endangered cultural heritage coming from the 2001 Convention is not yet shared by a sufficiently high number of states.30
The Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 2003)31 was negotiated to fill a gap within the UNESCO legal instruments in this field and aims in particular at placing due emphasis on an aspect of cultural heritage that, although not as “tangible” as buildings or natural sites, is equally important “as a mainspring of cultural diversity and a guarantee of sustainable development” and deserves to be safeguarded in the “general interest to humanity” (preamble). The heritage addressed here is that of “the practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts and cultural spaces associated therewith—that communities, groups and, in some cases, individuals recognize as part of their cultural heritage” (Article 2, paragraph 1). It is manifested in a number of domains, such as oral traditions and expressions, including language as a vehicle of the intangible cultural heritage, performing arts, social practices, rituals and festive events, knowledge and practices concerning nature and the universe, and traditional craftsmanship (Article 2, paragraph 2).
The parties to the 2003 Convention recognize that the processes of globalization and social transformation, while creating conditions for renewed dialogue among communities, “also give rise, as does the phenomenon of intolerance, to grave threats of deterioration, disappearance and destruction of the intangible cultural heritage” (preamble). Apart from its cultural dimension, the intangible cultural heritage also involves other fundamental values, such as the respect of human rights of the communities that create, maintain, and transmit the heritage, especially those of indigenous peoples and minority groups, and the preservation of the natural environment. It is important to recall that the 2003 Convention takes into consideration solely the heritage that “is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development” (Article 2, paragraph 1).32
The 2003 Convention establishes two lists, namely the Representative List of the Intangible Cultural Heritage of Humanity and the List of Intangible Cultural Heritage in Need of Urgent Safeguarding. A third list is also drawn up to include the national, subregional, and regional programs, projects, and activities for the safeguarding of the heritage that best reflect the principles and objectives of the 2003 Convention (so-called “best practices”). The Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage is established under the 2003 Convention with responsibility (p. 318) for examining the proposals submitted by states parties for addition to the lists. The Committee has so far entered 508 elements in the lists (429 in the representative list, 59 in the urgent safeguarding list, and 20 in the best practices list).
The social and evolving character of intangible cultural heritage gives rise to complex questions. For instance, it may be asked to what extent activities of recreation, reinterpretation, or revitalization of such heritage are not admissible because they result in changes in its substance. Natural transformation does not mean artificial alteration, even though many variations can be found between one extreme and the other.33
During the negotiations for the 2003 Convention it was agreed that the crucial question of the relationship between intangible cultural heritage and intellectual property rights falls within the mandate of the World Intellectual Property Organization (WIPO).34 However, the way in which the main intellectual property rights have been conceived and formulated in national legislation and international instruments seems to be in conflict with many of the peculiarities of the intangible cultural heritage and with the needs of the communities that create and transmit such heritage, especially the indigenous communities.35 For instance, the requirement of novelty under intellectual property law cannot apply to most of the manifestations of intangible heritage that are based on the transmission of practices and knowledge from generation to generation. The granting of intellectual property rights to a specific person seems equally inappropriate for cultural manifestations that are often expressed in a collective way and are considered by the practitioners themselves as belonging to a whole community. The temporary limits of the rights granted to the holder of a patent do not comply with the permanent character of a heritage that often has deep social or religious roots and is not intended to fall into the public domain after the expiration of a given time. Furthermore, the cost itself of obtaining a patent may discourage traditional holders of intangible cultural heritage from initiating the relevant procedures.
The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 2005) (“the 2005 Convention”)36 starts from the assumption that “cultural diversity (p. 319) forms a common heritage of humanity and should be cherished and preserved for the benefit of all” and that “cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and nations” (preamble). The process of globalization, while facilitating the rapid development of information and communication technologies and affording unprecedented conditions for enhanced interaction between cultures, also represents “a challenge for cultural diversity, namely in view of risks of imbalances between rich and poor countries.” For these reasons, states parties to the 2005 Convention recognize “the need to take measures to protect the diversity of cultural expressions, including their contents, especially in situations where cultural expressions may be threatened by the possibility of extinction or serious impairment.”
According to Article 4, paragraph 1 of the 2005 Convention, “cultural diversity” refers to the manifold ways in which the cultures of groups and societies find expressions that are passed on within and among groups and societies. Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented, and transmitted, but also through diverse modes of artistic creation, production, dissemination, distribution, and enjoyment, whatever the means and technologies used.
The 2005 Convention tries to strike a balance between the two main “souls” of cultural expressions. They must not be treated as solely having a commercial value,37 as they also have a cultural nature, conveying identities, values, and meanings. If there are special situations where cultural expressions on the territory of a state party are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding, the state concerned is allowed to take all appropriate measures to protect and preserve such cultural expressions (Article 8). Whether this provision is compatible with the obligations arising from treaties promoting the free movement of goods and services is open to debate. Article 20 addresses the thorny issue of the relationship between the 2005 Convention and other treaties, and is based on the criteria of mutual supportiveness, complementarity, and non-subordination. However, the lack of clarity of this provision has been criticized by some states:
Under the provisions of the convention as drafted, any State, in the name of cultural diversity, might invoke the ambiguous provisions of this convention to try to assert a right to erect trade barriers to goods or services that are deemed to be cultural expressions. That term, “cultural expressions”, has never been clearly defined and therefore is open to wide misinterpretation. Such protectionism would be detrimental to the free exchange of ideas and images. It could also impair the world trading system and hurt exporters of all countries.38
Some gaps can be identified among the subject matters covered by the treaties of world scale of application so far adopted within the framework of UNESCO. For instance, no convention has been negotiated with respect to the preservation of languages in danger of disappearance.39 In other areas, where the adoption of a treaty has not proven feasible, soft-law instruments have been adopted within UNESCO. This is the case of the Declaration concerning the Intentional Destruction of Cultural Heritage, adopted in 2003 by the UNESCO General Conference. It recalls the tragic destruction of the Buddhas of Bamiyan, Afghanistan, which affected the international community as a whole.
As regards intentional destruction of cultural property, there is an evident gap and inconsistency in the list of crimes of the individual provided for under the 1998 Rome Statute of the International Criminal Court. It is not clear why “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives” is established as a war crime (Article 8, paragraph 2, b, ix, and Article 8, para. 2, e, iv),40 while the widespread or systematic destruction of cultural properties in time of peace is not considered as a crime against humanity.
It should also be noted that at least two instruments, namely the above-mentioned UNIDROIT Convention41 and 2001 Convention,42 have not yet received the sufficiently widespread acceptance from states that they would deserve.
But these challenges should not obscure two fundamental messages to be drawn, in a clear and coherent manner, from the mandates and activities of the United Nations and UNESCO in the field of culture, as reflected in the treaties of global scope adopted within the framework of UNESCO. First, culture contributes to the maintenance of peace. Second, the protection and promotion of culture is a general interest of the international community as a whole.
1 The references given hereunder are limited to a few volumes of general character: Barbara T. Hoffman (ed), Art and Cultural Heritage. Law, Policy and Practice (CUP 2006); Abdulqawi Yusuf (ed), Standard-Setting in UNESCO (UNESCO-Martinus Nijhoff 2007); James AR Nafziger and Tullio Scovazzi (eds), The Cultural Heritage of Mankind (Martinus Nijhoff 2008); James AR Nafgizer and Ann M Nicgorski, (eds), Cultural Heritage Issues: The Legacy of Conquest, Colonization, and Commerce (Martinus Nijhoff 2009); Toshiyuki Kono (ed), The Impact of Uniform Laws on the Protection of Cultural Heritage and the Preservation of Cultural Heritage in the 21st Century (Martinus Nijhoff 2010); Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity (Martinus Nijhoff 2012); Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (OUP 2013).
4 At the World Conference on Cultural Policies “delegates found agreement in understanding culture not in the restricted sense of belles-lettres, the fine arts, literature and philosophy, but as the totality of the distinctive and specific features of the ways of thinking and organizing the lives of every individual and every community” (From Ideas to Actions—70 Years of UNESCO (UNESCO 2015) 111).
5 The concept is even broader if the International Convention against Doping in Sport (Paris, 2005) is considered. Sport is seen in this convention “as a means to promote education, health, development and peace” (preamble).
7 UNESCO, Subsidiary Body for the Examination of Nominations to the Representative List of the Intangible Cultural Heritage of Humanity, Report by the Rapporteur, doc. ITH/09/4.COM/CONF.209/INF.6 (26 August 2009) 6.
8 As it has been remarked by Francesco Francioni (“The Evolving Framework for the Protection of Cultural Heritage in International Law” in Borelli and Lenzerini (n 1) 25), the current framework of the international protection of cultural heritage “is constituted largely of treaty law and to a smaller extent of soft law instruments mostly adopted within UNESCO. However, based on careful examination of international practice, it can be argued that some general principles have formed, or are in process of being formed, as part of general international law with regard to the obligation to respect and protect cultural heritage of significant importance.”
9 UNESCO was the first United Nations agency to admit the State of Palestine (31 October 2011). “Unfortunately, the decision to admit Palestine as a member with full rights triggered a major financial crisis at UNESCO as the United States decided to withhold its contributions” (From Ideas (n. 4) 207). In 2017, the United States notified its decision to withdraw from UNESCO, taking effect on December 31, 2018.
12 Today 82 states are parties to the Second Protocol, which was concluded “considering that the rules governing the protection of cultural property in the event of armed conflict should reflect developments in international law.”
13 This obligation finds a solid basis in the Regulations concerning the Laws and Customs on Land, annexed to the Fourth Hague Convention (1907); the treaties of peace adopted after World War II; the fourth Geneva Convention on the protection of civilian persons in time of war (1949); and in several elements of international practice.
15 Antoine Quatremère de Quincy, Lettres sur le préjudice qu’occasionneroient aux arts et à la science, le déplacement des monumens de l’art de l’Italie, le démembrement de ses écoles, et la spoliation de ses collections, galeries, musées, etc. (Rome 1815; published for the first time in 1796).
16 Notable for their advanced character are the Operational Guidelines for the implementation of the 1970 Convention, adopted by consensus in 2015 by the Meeting of States Parties. They not only aim “to strengthen and facilitate the implementation of the Convention,” but are also intended “to identify ways and means to further the achievement of the goals of the Convention through strengthened international cooperation.” In fact, the Guidelines provide advanced interpretations to the most important provisions of the 1970 Convention. However, they do not have a binding character.
18 Under Article 4, paragraph 4, “in determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances.”
22 Defined as “architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science” (art 1).
23 Defined as “groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science” (art 1).
24 Defined as “works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view” (art 1).
28 Prosecutor v Jokić (Sentencing Judgment) IT-01-42/1-S, T Ch I (18 March 2004) and Prosecutor v Jokić (Judgment on Sentencing Appeal) IT-01-42/1-A, App Ch (30 August 2005); Prosecutor v Strugar (Judgment) IT-01-42-T, T Ch II (31 January 2005) and Prosecutor v Strugar (Judgment) IT-01-42-A, App Ch (17 July 2008).
33 Very interesting is the element “Gule Wamkulu,” inscribed in the Representative List by Malawi, Mozambique, and Zambia. It is a dance where, in a rather unexpected manner and as a clear demonstration of the passing of time, the dancers wear costumes and masks representing wild animals, spirits of the dead, and slave traders, as well as motorcycles and helicopters.
34 Article 3, paragraph b, clearly provides that nothing in the Convention may be interpreted as affecting the rights and obligations of states parties deriving from any international instrument relating to intellectual property rights or to the use of biological and ecological resources to which they are parties.
35 According to the Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, adopted in 1982 by UNESCO and WIPO, there is a need for protection of such expressions against “(i) use without authorization; (ii) violation of the obligation to indicate the sources of folklore expressions; (iii) misleading the public by distributing counterfeit objects as folklore creations, and (iv) the public use of distorted or mutilated folklore creations in a manner prejudicial to the cultural interests of the community concerned.”
37 The commercial character of cultural activities, goods, and services explains why the European Union was an active participant in the negotiations for the 2005 Convention, which is open to the accession also by regional economic integration organizations.
38 Statement of 17 October 2005 by the United States representative, Mrs. Oliver, quoted in Scovazzi, “La notion de patrimoine culturel de l’humanité dans les instruments internationaux” in Nafgizer and Scovazzi (n 1) 113.
40 The two provisions respectively cover conflicts of an international character and conflicts not of an international character. Their wording is taken from Article 27 of the Annex to the Convention with respect to the Laws and Customs of War on Land (The Hague, 1899). In fact, this wording needs today some updating.