From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 23 June 2021
- Cultural property / heritage — Armed conflict — Belligerence — Geneva Conventions 1949 — Protected persons and property — Occupation
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
1 Cultural property, as a specific object of legal protection, has developed into a distinct branch of international law only recently. Until the second half of the 19th century the term cultural property did not even exist within the lexicon of international law. The early instruments were adopted in the second half of the 19th century and at the beginning of the 20th century to mitigate the violence of war, such as the Final Protocol of the Brussels Conference on the Rules of Military Warfare (‘Brussels Declaration’) in 1874 and two 1907 Hague Conventions. These were the 1907 Hague Convention Respecting the Laws and Customs of War on Land (‘1907 Hague Convention IV’) and its Regulations—which are annexed to the 1907 Hague Convention IV (‘1907 Regulations’; Arts 27 and 56 1907 Regulations)—and the 1907 Hague Convention on Bombardment by Naval Forces in Time of War (‘1907 Hague Convention IX’; Art. 5 1907 Hague Convention IX; Hague Peace Conferences [1899 and 1907]). These conventions did not refer to a unitary category of cultural property but rather to an empirical and heterogeneous list which included ‘buildings dedicated to religion, art and science, or charitable purposes … historic monuments’, as well as sites that had nothing to do with culture, such as hospitals and places dedicated to the care of the sick and wounded. It was only with the Constitution of the United Nations Educational, Scientific and Cultural Organization (‘UNESCO Constitution’) that cultural property started to be treated as a distinct object of international protection, because of its inherent value as an expression of the different cultural traditions of the world, and by virtue of the constitutional mandate of the United Nations Educational, Scientific and Cultural Organization (UNESCO) to promote peace through education and culture—because ‘it is in the minds of men that the defences of peace must be constructed’ (Preamble UNESCO Constitution). In the pursuit of this mandate, UNESCO adopted the Convention on the Protection of Cultural Property in the Event of Armed Conflict including Regulations on 13 May 1954 (‘1954 Convention’; ‘1954 Regulations’; Cultural Property, Protection in Armed Conflict). This instrument inaugurated the comprehensive normative expression of cultural property, subsequently adopted in treaty practice and case-law. For the first time it provided precise criteria for the definition of the new concept. Most importantly, it recognized that the conservation and protection of cultural property is a concern of the international community as a whole, because ‘damage to cultural property belonging to any people whatsoever means damage to cultural heritage of all mankind, since each people makes its contribution to the culture of the world’ (Preamble 1954 Convention).
2 In the more than 50 years since the adoption of the 1954 Convention, international law on the protection of cultural property has undergone a constant evolution and, at the beginning of the 21st century, has led to an unprecedented expansion of the scope of protection so as to cover immovable property and sites, as well as movables in international trade, objects located in areas beyond national jurisdiction, intangible cultural heritage, and the very concept of diversity of cultural expressions. Today, international law on cultural property remains constituted mainly of multilateral treaties, the great majority of which have been adopted under the auspices of UNESCO. However, the practice developed under these treaties, the strong institutional support provided by UNESCO, and the increasingly important role played by culture in the context of globalization, contribute to the formation of some general principles that have the potential to penetrate the sphere of domestic jurisdiction of individual States and also to provide standards of reference for States that are not parties to specific treaties (International Law and Domestic [Municipal] Law; Jurisdiction of States; State). In the following analysis international law on cultural property is examined in relation to five general categories of relevant norms and principles. The first is constituted by the conventions and soft law applicable to the protection of cultural property in time of war and of belligerent occupation (Occupation, Belligerent). The second concerns the rules applicable to prevent and suppress the illicit traffic in movable cultural objects, which is the source of a burgeoning case law before domestic courts and arbitral tribunals. The third category is that of international norms and institutions aimed at safeguarding cultural property of outstanding universal value for all humanity. The fourth category is situated at the interface between cultural property and the law of the sea and aims at preventing loss and damage to underwater cultural heritage at a time when commercial interest in retrieving and exploiting such heritage is growing world-wide. And, finally, the fifth category of international norms relates to the safeguarding of the immaterial aspects of cultural heritage, which is represented by the oral, artistic, and cultural expressions transmitted from one generation to another as part of the cultural identity of peoples, communities or groups.
B. War and Cultural Property
3 For millennia the destruction and plunder of cultural property was considered a side effect and even a perk of war. During the Renaissance art and culture became a powerful symbol of the prestige and power of the State. For this reason, the precursor of modern political science, Nicolò Machiavelli, advocated the razing of conquered cities because:
The Thirty Years War in the 17th century and the destruction and plunder of the Napoleonic armies in the 18th and 19th centuries are faithful executions of Machiavelli’s warning. Only with the new political settlement brought about in Europe with the Vienna Congress (1815) can one begin to see a change of attitude in international practice. It is in this period that the first attempts are made to obtain the restitution or return of cultural objects stolen by the occupying armies in the occupied territories: emblematic of this is the restitution obtained by Antonio Canova of the cultural objects stolen from Rome by Napoleon’s armies which were transferred to Paris in the pursuit of the centralizing project of the great European Museum (Jayme 889). But the most important shift occurred in the second half of the 19th century when cultural property begins to benefit indirectly from the adoption of international instruments aimed at humanizing war and at introducing the fundamental distinction between military objectives and civilians. (Civilian Objects; Civilian Population in Armed Conflict). The Brussels Declaration introduced the prohibition of acts of destruction and plunder of buildings and assets dedicated to instruction, arts, and science. The Brussels Declaration was never formally adopted as law, but it influenced the conduct and the adoption of military codes largely inspired by its principles (1880 Oxford Manual on land warfare and its 1913 extension to maritime war). These precedents later led to the elaboration of the first comprehensive body of international law of war with the 1899 and 1907 Hague Peace Conferences.
4 In the period between the two World Wars two initiatives had special relevance for cultural property. The first was the adoption of the 1923 Hague Rules of Air Warfare (‘Hague Rules’; Air Warfare) which, although never adopted in a legally binding form, was widely regarded as declaratory of customary international law and identified important historic monuments (Arts 25, 26 Hague Rules) as the object of specific protection for the first time. The second initiative was the adoption of the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (‘Roerich Pact’) applicable to the American continent and noteworthy for its enunciation of cultural property as heritage of peoples’ culture.
5 The massive destruction and systematic plunder of cultural property during World War II demonstrated the inadequacy of rules contained in the 1907 Hague Conventions and stimulated an innovative approach to combating devastation and loss of cultural objects. The most important manifestations of this new approach were the specific instructions of the Commander in Chief of the Allied Forces to respect cultural property as far as possible in the theatre of war, and the Declaration by the United Nations on Forced Dispossession of Property in Enemy-Controlled Territory in 1943 (‘London Declaration’) with which the Allied Powers reserved for themselves the annulment of acts of transfer of property, including cultural property, effected in the territories occupied by the Axis Powers (Toman 37; Whiteman 329).
6 After World War II, with the adoption of the United Nations Charter, the general prohibition of the use of force in international relations and the codification of fundamental principles of international humanitarian law in the Geneva Conventions I–IV (1949) (‘Geneva Conventions’; Use of Force, Prohibition of), it became apparent that the time was ripe for the adoption of a comprehensive treaty on the protection of cultural property in time of war. A draft text, accompanied by regulations for its execution, was prepared by UNESCO in spring 1954 and was adopted on 14 May 1954 in legally binding form, resulting in the 1954 Convention, with an Additional Protocol (‘First Protocol’) on the prevention and suppression of acts of illicit transfer of cultural property from occupied territories. These instruments still represent the fundamental legal framework for the safeguarding of cultural objects in time of war. For the first time, the 1954 Convention provided a precise definition of cultural property based on two distinct criteria: the first, relating to the importance of the object, which must be great and objectively ascertainable from inventories or registers established in the territorial State; the second, relating to a typology of cultural objects that includes: monuments, archaeological sites, archives, art and science collections; buildings containing cultural objects, such as museums and libraries; and centres containing monuments (Art. 1 1954 Convention). Other innovative aspects of the 1954 Convention include: the obligation to prepare in peacetime the measures of protection to be applied in the event of war (Art. 7 (2)); the introduction, next to the regime of ordinary protection, of a regime of ‘Special Protection’ of cultural property of exceptional importance to be inscribed in a special list to be kept by UNESCO (Arts 8–11); the prohibition of reprisals against cultural property (Art. 4 (4)); and the above-mentioned recognition of the principle that damage to cultural property of any people means damage to the heritage of all mankind (Preamble).
7 Since its adoption, the 1954 Convention has achieved considerable success in attracting an increasing number of States Parties, now numbering 133, and in influencing the adoption of its principles in the military codes and practice of States even before they became parties to it (such as the United States of America and the United Kingdom, which ratified the Convention, respectively in 2009 and 2017). Nevertheless, time has also revealed the deficiencies and shortcomings of the 1954 Convention. First of all, the system of special protection for cultural property of very great importance has remained largely on paper, with only one monumental centre put on the list—the Vatican City in Rome. This was due to the cumbersome inscription procedure, requiring the absence of objections by other parties and the problematic condition of adequate distance of the cultural site from potential military objectives or industrial centres. Secondly, the 1954 Convention has suffered from the absence of an institutional implementing mechanism capable of intervening in time of conflict. This became apparent especially during the Iran-Iraq War (1980–88), the Iraq-Kuwait War (1990–91), the Yugoslav war, and, most recently, in the conflicts in Syria, Iraq, and Mali. Neither the institution of the delegates of the Protecting Powers nor the Commissioner-General for cultural property (Arts 2–6 1954 Regulations) has functioned in these conflicts, in spite of the incalculable loss and destruction that they have caused to cultural heritage (see UNESCO Doc CLT-95/WS, Paris 1995 and UNESCO Report on Heritage and Cultural Diversity at Risk in Iraq and Syria, 2014, available at <https://unesdoc.unesco.org/> [11 November 2020]). Thirdly, the effectiveness of the 1954 Convention has been undermined by the lack of a system of sanctions. The only provision on sanctions is Art. 28, which provides for a generic commitment of the States Parties to undertake steps to ensure criminal or disciplinary sanctions ‘within the framework of their ordinary jurisdiction’, clearly involving no obligation to introduce specific penal norms aimed at effectively sanctioning crimes against cultural property.
8 These deficiencies stimulated a movement in the early 1990s towards strengthening the protection of cultural heritage against acts of war and of intentional destruction. On the basis of a proposal by Italy, the Netherlands, and Russia the Executive Board of UNESCO approved Decision 5.5.1 of May 1993 aimed at widening the scope and strengthening the application of the 1954 Convention. Building on a comprehensive report prepared by British scholar Patrick Boylan, and after a long series of expert meetings, a diplomatic conference convened in the Hague in the spring of 1999 adopted the additional Second Protocol to the 1954 Convention on 26 March 1999 (‘Second Protocol’) which entered into force in 2004. This Second Protocol does not modify the original 1954 Convention, but rather adds a further layer of norms, procedures, and institutions that have effect only for the States Parties to it. This entails that the relations between States Parties to the Second Protocol and States Parties only to the 1954 Convention will be governed by the 1954 Convention, unless the latter consent to the application of the more demanding rules of the Second Protocol. As far as the substance is concerned, the Second Protocol has introduced several important innovations. First, its Art. 22 extends the protection of cultural property to non-international conflicts (Armed Conflict, International; Armed Conflict, Non-International). This solution has been criticized as being contrary to customary international law (Desch 83). However, this opinion does not take into account that the limits of the 1954 Convention became apparent in non-international conflicts, and especially in inter-ethnic conflict where cultural objects were targeted as symbols of the adversary’s identity (Ethnicity). Secondly, a new system of ‘Enhanced Protection’ has replaced the old and ineffective regime of Special Protection, with different operational rules and the establishment of an Intergovernmental Committee of 12 members (Arts 24–27 Second Protocol) responsible for the listing under Enhanced Protection of any cultural object of the greatest importance for humanity (Art. 10 Second Protocol). But the most radical innovation of the Second Protocol is the introduction of a detailed regime of individual criminal responsibility in line with what was already provided in the instruments of international humanitarian law, especially Art. 85 (4) First Protocol additional to the 1949 Geneva Conventions (Humanitarian Law, International). For the most serious violations, such as the attack against cultural property under enhanced protection, Art. 16 Second Protocol establishes the universal jurisdiction over the offender provided that the accused is found in the territory of the prosecuting State (Criminal Jurisdiction of States under International Law).
9 Besides the Second Protocol, two other developments have contributed to the strengthening of the protection of cultural heritage against acts of war and violence. The first is the introduction in the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (Art. 3 (d) ICTY Statute) and of the Rome Statute of the International Criminal Court (ICC) (Arts 8 (2) (b) (ix) and (c) (iv) ICC Statute) of specific provisions criminalizing offences against cultural property. These provisions have already given rise to a rich jurisprudence (Frulli 2005; Lenzerini 2013). In 2016 the ICC applied for the first time the above provision of the Rome Statute to convict and sentence an individual jihadist responsible for war crimes consisting of acts of intentional destruction of cultural property during the 2012 conflict in Mali (The Prosecutor v Ahmad al Faqi Al Mahdi [Judgment and Sentence] ICC-01/12-01/15 [27 September 2016]). This judgment was followed by an order charging Al Mahdi with the obligation to pay 2.7 million Euros for damage caused to the cultural heritage of Mali (The Prosecutor v Ahmad al Faqi Al Mahdi [Reparations Order] ICC-01/12-01/15 [17 August 2017]). The second development concerns specific initiatives undertaken by UNESCO and the United Nations (UN) to prevent and suppress acts of destruction and looting of cultural property in the context of armed conflicts. As far as UNESCO is concerned, we can recall the adoption by the General Conference of the Declaration on Intentional Destruction of Cultural Heritage in response to the despicable and gratuitous destruction by the Taliban of the Great Buddhas of Bamiyan (Francioni and Lenzerini 2003). This Declaration confirms that the safeguarding of cultural heritage of great importance for humanity can become an element of the general interest of the international community and can correspondingly restrict the ambit of domestic jurisdiction of the State on whose territory the heritage is located. At the UN level, the Security Council has gone as far as to consider the intentional destruction of cultural property and the illicit traffic of looted cultural objects as a threat to international peace and security under Art. 39 UN Charter (UNSC Res 2249 of 20 November 2015, UN Doc S/RES/2249 (2015) fifth preambular paragraph and UNSC Res 2347 of 24 March 2017, UN Doc S/RES/2347 (2017) Preamble; United Nations, Security Council). As to the question whether the deliberate destruction of cultural heritage belonging to a distinct community or group may amount to ‘cultural genocide’, the answer provided by the International Court of Justice (ICJ) in the two genocide cases (Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case [Bosnia and Herzegovina v Serbia and Montenegro] , and Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case [Croatia v Serbia] ) is in line with the jurisprudence of the ICTY in the sense that systematic destruction of cultural heritage may be evidence of the specific intent to commit genocide. At the regional level, and consistently with these developments, the Council of Europe (COE) has promoted the adoption of the recent Nicosia Convention on Offences Relating to Cultural Property (2017), which however is not yet in force as of the time of writing (Council of Europe Convention on Offences Relating to Cultural Property).
C. Trade and Cultural Property
10 One of the most serious threats to cultural property today is the rampant illicit and clandestine traffic of cultural objects and antiquities across national boundaries. Although some authors extol the benefits of the widest liberalization of cultural property in the name of cultural exchange and advance of scientific knowledge (Merryman 831), it is a fact that illicit and non-authorized traffic contributes to the dispersion and loss of historical and contextual knowledge, while at the same time impoverishing the source countries of important elements of their national identity and of valuable resources for tourism and cultural industries. A first response to this problem was the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (‘1970 Convention’). This Convention establishes a system of international cooperation to prevent and reduce theft and illicit transfer of cultural objects on the basis of: a detailed definition of the notion of cultural property (Art. 1); the introduction of a system of export certificates (Arts 3 and 6); the obligation to introduce measures aimed at preventing the acquisition by museums and similar institutions of cultural property illegally exported from the territory of other contracting parties (Art. 7); and the obligation to return, upon request of the State of origin, the cultural property illegally exported, provided that equitable compensation is paid to the innocent purchaser (Art. 7 (b) (ii)). Art. 9 1970 Convention also provides for an enhanced form of cooperation by way of bilateral agreements meant to forestall emergency situations where the illicit traffic reaches a level such as to endanger a particular sector of the cultural heritage of a country. The increasing awareness that illicit traffic of a cultural object is no longer sustainable on ethical and political grounds has attracted a considerable number of important market countries within the scope of application of the 1970 Convention—today, the US, France, Italy, the United Kingdom, Switzerland, Japan, China, the Netherlands, and Germany are parties to it—and at the same time the 1970 Convention has stimulated a robust movement toward the adoption of voluntary codes of ethics by art merchants and museums (see generally O’Keefe 2006). The principal weakness of the 1970 Convention remains its limited scope of application: the obligation to prevent and suppress illicit traffic in cultural objects is limited to the hypotheses of theft, illicit export, and illicit import and acquisition that involve as an active or passive party ‘museums and similar institutions’ (Art. 7 (a) and (b) (i) 1970 Convention). Thus this obligation does not extend to those situations of illicit export or import of cultural objects which involve private parties. Besides, the Convention is silent as to whether cultural objects retained in the importing country in violation of the time limits and conditions of a temporary loan constitute ‘illicit import or export’ under Art. 3. This has been a critical issue in the dispute concerning the return of the ‘Crimean Treasures’, a collection of artefacts temporarily exported to the Netherlands for an exhibition and concurrently demanded back by the Crimean museums—the lenders of the artefacts—and by the Ukraine, the State that had issued the temporary export permit before Crimea was annexed (Annexation) to the Russian Federation (see Amsterdam Court of Appeal Judgment of 16 July 2019, Case No 200.212.377/01 ECLI:NL:GHAMS:2019:2427). Another weakness of the 1970 Convention is the vagueness of its provision Art. 7 (b) (ii) on compensation to the innocent purchaser or to persons who have valid title to the illegally transferred object. No criterion is indicated to establish what is a valid title, nor under what law its validity is to be determined.
11 In order to remedy these shortcomings, a new UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (‘1995 Convention’) was entered into. This new Convention goes to the heart of the problem of legal title over stolen or illegally exported cultural objects and sets forth several innovative principles. First, it establishes that the ‘possessor of a cultural object which has been stolen shall return it’ (Art. 3 (1) 1995 Convention). This lapidary language excludes the operation of the principle followed in many civil law countries according to which the acquisition of a cultural object a non domino is possible when the purchaser is in good faith and possession is acquired on the basis of a good transfer of title, such as contract or donation. Secondly, the 1995 Convention treats archaeological objects which have been unlawfully excavated, or unlawfully retained after excavation, as ‘stolen objects’ (Art. 3 (2)), which entails an important concession to the legislation of those States that designates as public property all underground archaeological objects. Thirdly, the 1995 Convention introduces the objective criterion of due diligence in the acquisition of cultural objects, which replaces the subjective and almost unchallengeable criterion of good faith or innocent purchaser (Art. 4) and operates as a condition of the payment of reasonable compensation to the possessor. Other important features of the 1995 Convention are the adoption of uniform rules on time limits for the lodging of a request for restitution or return—three years from the time the claimant had knowledge of the location of the cultural object and the identity of its possessor and 50 years from the theft or the illegal export, but, in principle, with no time limit for cultural objects removed from an inventoried public collection, an identified monument, or archaeological site, or from a sacred collection of an indigenous community (Arts 3 and 5 (5)). There is a much stricter requirement for return of illegally exported objects as compared to stolen objects—for the former the requesting State must prove that the export significantly impairs a national interest in the conservation of the object, its integrity, the preservation of its scientific or historical value, or the safeguarding of the traditional culture of indigenous communities (Art. 5). But, unlike the 1970 Convention, the UNIDROIT Convention makes it clear that a cultural object temporarily exported and not returned under the terms of the export permit must be deemed to have been illegally exported (Art. 5 (2)).
12 In addition to the two above-examined conventions, the issue of return of illegally exported cultural property was originally regulated for the Member States of the European Union (‘EU’) by Council Directive 93/7/EEC (‘EU Directive’). The provisions of this EU Directive were less stringent than the 1995 Convention, both from the point of view of the scope of ‘cultural property’, which under Art. 1 EU Directive was defined in terms of inventoried national treasures, while the 1995 Convention and 1970 Convention adopt a broader, open-ended definition, and from the point of view of time limit, which in the EU Directive was only one year—instead of three years in the 1995 Convention—from the time the requesting State learned of the location of the object or the identity of the holder (Art. 7 EU Directive). These discrepancies increased the practical relevance of the so-called disconnection clause that was included in the final text of the 1995 Convention at the behest of EU Member States. This clause is contained in Art. 13 (3) EU Directive but unlike other similar clauses that have become a constant feature in treaty making involving subject-matters also falling within EU competence, the 1995 Convention disconnection clause is purely optional: Member States may declare that they will apply inter se the internal rules of the organization—ie the EU Council Directive—instead of the provisions of the 1995 Convention. The risk of discrepancy between the UNIDROIT Convention and the EU regime has been reduced by the adoption of a new EU Directive (Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State and Amending Regulation [EU] No 1024/2012), which has aligned to the UNIDROIT Convention the time limits for commencing proceedings for the return of illegally exported cultural objects (Art. 8).
13 Although neither the 1970 Convention nor the 1995 Convention has retroactive effect, recent practice has addressed the complex and politically sensitive problem of the return of cultural property displaced during World War II. A Declaration of principles—not legally binding—was adopted at the Washington Conference on Holocaust-Era Assets (3 December 1998, available at <https://www.lootedartcommission.com/Washington-principles> [18 January 2021]), which aims at identifying and facilitating the return of Nazi looted art. Also, a set of principles has been discussed by a group of governmental experts in view of their adoption in the form of a Declaration at the General Conference of UNESCO but as of 2019 no consensus has emerged on the content and scope of such declaration.
D. World Cultural Heritage
14 A very special form of cultural heritage protection is that established by the Convention on the Protection of World Cultural and Natural Heritage (‘World Heritage Convention’; World Natural Heritage), which concerns properties of such outstanding and universal value as to deserve a system of collective cooperation for their conservation and protection. The originality of this convention is in its holistic approach to culture and nature—both seen as parts of the common heritage of humanity—in its establishment of two ‘lists’ (Art. 11 World Heritage Convention), one comprising the great cultural and natural treasures of humanity, the other including the properties that from time to time are in need of special conservation measures—world heritage in danger; and in the establishment of strong institutional support, provided by an intergovernmental committee—the World Heritage Committee (Art. 8)—and a trust fund, consisting of compulsory and voluntary contributions from the States Parties as well as contributions from private entities and resources from the UNESCO budget (Art. 15; Trust Funds). These features have made the World Heritage Convention the most successful of the UNESCO instruments on the protection of cultural heritage, with 193 States now parties to it and an ever-increasing list of more than 1,000 sites spread all over the world. Underlying this success is the careful balance struck by the World Heritage Convention between the national interest of the territorial State to give the maximum visibility to its cultural and natural treasures and the general interest of humanity in their preservation. Sites inscribed on the list remain subject to the sovereignty of the territorial State and to the property rights of private owners, if any (Art. 6). However, inscription on the list signals the interest of humanity in the conservation of the listed site and triggers the mechanism of international cooperation, which includes monitoring and reporting on the state of conservation (Art. 29), international assistance (Arts 19–26), and, in cases of urgent need the placing of the site on the List of World Heritage in Danger, which signals the necessity of ‘major operations’ to ensure the preservation of the world heritage value of the site concerned (Art. 11 (4)).
E. Underwater Cultural Heritage
15 Constant progress in marine technology and the increasing appetite for underwater relics and archaeological objects in the last decades of the 20th century created the conditions for an unregulated commercial race to retrieve the still untapped cultural heritage lying at the bottom of the sea. A general legal framework for the oceans had been adopted with the United Nations Convention on the Law of the Sea (‘UN Convention on the Law of the Sea’), which entered into force in 1994. However, in spite of its long and complex negotiating process, UN Convention on the Law of the Sea provisions relevant to cultural heritage remained minimal and not free of ambiguity. Art. 303 proclaimed in general terms that ‘States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose’. Paragraph 2 of this article created a presumption of jurisdiction of the coastal State over cultural objects found in its contiguous zone—up to 24 nautical miles. For cultural objects found in the area beyond national jurisdiction—the international area—Art. 149 lays down the obligation to preserve or dispose of them ‘for the benefit of mankind as a whole’, having regard, however, for the ‘preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin’ (International Seabed Area). In spite of the apparent simplicity of this normative scheme, it is difficult to understand how the ‘benefit of mankind’ can be reconciled with the preferential rights of the State or country of cultural origin and what is the difference between the latter and ‘the State of historical and archaeological origin’, and how the duty to protect underwater heritage proclaimed in Art. 303 (1) is compatible with the express recognition of the law of salvage in para. 3 of this article. Besides, the jurisdiction recognized in favour of the coastal State under Art. 303 (2) is functionally linked to the competence that the coastal State may exercise in the contiguous zone under Art. 33 UN Convention on the Law of the Sea. But these competences are limited to custom, fiscal, immigration or sanitary measures—so, they may be useful at most to suppress smuggling of archaeological items found in the contiguous zone but certainly not to protect effectively those objects in situ.
16 It is because of these ambiguities and gaps in the UN Convention on the Law of the Sea that in 1996 UNESCO decided to proceed with the elaboration of a new convention on the protection of the Underwater Cultural Heritage. Building on previous European initiatives and on a draft prepared by the International Law Association (ILA) (Draft Convention on the Protection of the Underwater Cultural Heritage Resolution 8 [International Law Association Buenos Aires Conference 1994]), and after five years of intense and difficult negotiations, a new Convention on the Protection of Underwater Cultural Heritage was adopted by the UNESCO General Conference on 2 November 2001 (‘Underwater Heritage Convention’). The Underwater Heritage Convention failed to attract universal support: 9 States voted against and 19 abstained, mainly due to concerns relating to the impact the new instrument might have on the rights and freedoms guaranteed by the law of the sea. This certainly weakens the effectiveness of the Underwater Heritage Convention, whose ratification process has been quite slow, as it was entered into force on 2 January 2009 only after reaching the twentieth ratification. Notwithstanding this, the adoption of the Underwater Heritage Convention marks an important step towards filling the gaps in the international legislation applicable to the protection of cultural heritage. First, it provides a definition of underwater cultural heritage in accordance with a temporal criterion of 100 years of underwater permanence (Art. 1); secondly, it restates the principle that underwater cultural heritage is to be protected in situ in the general interest of humanity and that State Parties must cooperate to this end (Art. 2 (3)); thirdly, salvage law and the law of finds are excluded with respect to cultural heritage. The Underwater Heritage Convention does not alter the system of coastal zones established by UNCLOS (Territorial Sea, contiguous zone, Archipelagic Waters, Continental Shelf and Exclusive Economic Zone) but commits States Parties to regulate activities related to underwater heritage in accordance with the code of best practices fixed in the Annex Underwater Heritage Convention. The Underwater Heritage Convention also requires that States Parties shall ensure that ships flying their flag notify the discovery of cultural heritage (Flag of Ships), or the intention to proceed to underwater archaeological research, to a designated national authority—in the case of activities in the continental shelf or in the exclusive economic zone (Art. 9), or to the Director General of UNESCO, in the case of discoveries or research activities located in the area (Art. 11; Marine Scientific Research). These notifications are intended to enable the Director General of UNESCO to inform all States Parties of the discovery or of the engagement in research so as to permit all potentially interested States to make a statement of interest and to be consulted.
17 Therefore, the Underwater Heritage Convention marks important progress towards the protection of underwater cultural heritage at a time when such heritage is increasingly exposed to the danger of an unregulated race to its commercial exploitation. However, the complexity of the notification and reporting procedure, the persistent opposition of important maritime powers, and the exemption from the obligations of notification and reporting provided under Art. 13 for ‘warships and other governmental ships’ may considerably diminish the efficacy of the new system (Warships; State Ships). Furthermore, on the specific question of the legal regime of wrecks of warships and other governmental ships, the Institut de Droit international has adopted a Resolution which confirms the immunity of the wrecks and cargo from the jurisdiction of any State other than the flag State (Resolution on the Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Law, Session of Tallinn 2015, Arts 2, 3, 4, and 5).
F. Intangible Cultural Heritage
18 The categories of international norms examined so far relate to cultural property, movable or immovable, but invariably of a material character. This preference for material heritage is the result of the prevailing view in Western culture that the expression of human creativity must take a built, monumental, and, in any event, tangible character. In other cultures, however, particularly in Asia and Africa, cultural heritage is represented to a large extent by oral traditions, practices, performances, and representations of an intangible character. To take into account this type of heritage, in 1989 UNESCO adopted the Recommendation on the Safeguarding of Traditional Culture and Folklore. In the following decade increasing interest in intangible heritage led to the launching of two further UNESCO initiatives: the 1994 Guidelines for Human Living Treasures, aimed at stimulating national legislation to safeguard ancient skills, arts, and crafts in danger of disappearing; and the 1997 Programme on the Proclamation of the Masterpieces of Oral and Intangible Heritage, aimed at selecting forms and places of celebration of cultural traditions of outstanding value for humanity. On the basis of these precedents, and under the strong impulse of the new Director General of UNESCO, K Matsuura—a Japanese diplomat extremely sensitive to the importance of intangible heritage—negotiations began in 2000 with a view to adopting a new normative instrument dealing with the safeguarding of immaterial forms of human creativity. The new instrument was adopted in the form of a binding Convention for the Safeguarding of the Intangible Cultural Heritage by unanimous vote of the UNESCO General Conference on 17 October 2003 (‘Intangible Cultural Heritage Convention’). One of the most important features of this convention is the comprehensive definition of intangible heritage provided by Art. 2, according to which ‘[t]he “intangible cultural heritage” means 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. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity’. For the purpose of the Intangible Cultural Heritage Convention, protection is granted only to intangible heritage that is compatible with international human rights, mutual respect and sustainable development. The Intangible Cultural Heritage Convention follows the model of the World Heritage Convention with the establishment of a Committee (Art. 5 Intangible Cultural Heritage Convention), of a list aimed at giving international visibility and prestige to items representative of the intangible heritage of humanity, and of a list of items in need of ‘urgent safeguarding’ (Arts 16 and 17).
19 In spite of the commendable efforts made by UNESCO in filling the intangible heritage gap, the Intangible Cultural Heritage Convention represents a minimalist solution and it remains to be seen how effective it will prove to be in helping to preserve the quickly disappearing intangible heritage of nations and communities throughout the world. One particularly troublesome feature is the rather unimaginative reproduction of the World Heritage Convention model with the lists and the committee. But, unlike the World Heritage Convention, the Intangible Cultural Heritage Convention is not meant to highlight and safeguard items of outstanding universal value but rather items that are important for the communities that created and maintained them and are, therefore, essential to safeguarding the rich variety of cultural expressions of humanity. In the light of this, it might have been more logical to adopt an approach based on a code of best practices and technical standards to be followed in national legislation, administrative measures, and conservation practice, rather than a list. Further, it is regrettable that the committee established under the Intangible Cultural Heritage Convention is a purely intergovernmental body lacking the institutional and permanent support of advisory bodies, as provided, instead, by the International Council on Monuments and Sites (‘ICOMOS’), the International Centre for the Study of the Preservation and Restoration of Cultural Property (‘ICCROM’), and the International Union for Conservation of Nature (‘IUCN’) in the World Heritage Convention. Perhaps the most important contribution of the Intangible Cultural Heritage Convention is in its raising awareness of the risk that economic globalization entails with regard to the standardization of lifestyles and the consequent erosion of ingenious and original artistic and social traditions on which the cultural diversity of humanity ultimately depends. In this sense, the Intangible Cultural Heritage Convention has been a catalyst for the elaboration and adoption in 2005 of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, an instrument that is meant to integrate cultural considerations in the law and policy of the World Trade Organization (WTO). In the EU, a similar role has been played by Art. 167 (4) Treaty on the Functioning of the European Union (former Art. 151 (4) Treaty Establishing the European Community).
20 The above analysis clearly shows that the protection of cultural heritage has come to occupy a distinct place and has reached a high level of complexity and sophistication in contemporary international law. However, until now such protection has been provided mainly by way of treaties and to some extent by instruments of soft law. Therefore, the question remains as to whether international law contains any general norm or principle of general application that may also create binding obligations for States that are not bound by cultural heritage conventions in force. The ICJ has never had occasion to make an authoritative pronouncement on this question—a cultural property claim brought before the ICJ, the Certain Property Case (Liechtenstein v Germany), failed at the stage of preliminary objections (Preliminary Objections: International Court of Justice [ICJ]). However, the practice developed so far shows that a core of general principles is emerging at the level of customary international law. The first principle is the prohibition of the destruction of cultural heritage of great importance for humanity in the event of armed conflict or military occupation and in the context of terrorism. The matrix of this principle is the general interest of humanity in the preservation from acts of discriminatory violence of the manifold expressions of the culture of the different peoples of the world. This prohibition has influenced the development of international criminal law in so far as intentional and discriminatory destruction of cultural property may entail individual responsibility for the commission of an international crime. A corollary of this principle is the obligation to return cultural objects displaced or unlawfully removed from occupied territories. A second important principle concerns the obligation to cooperate in time of peace towards the prevention and suppression of the illicit traffic in stolen or illegally exported cultural property. As we have seen, this principle not only underlies the two conventions in force—the 1970 and 1995 Conventions—but pervades the Security Council’s practice in the maintenance of peace and national judicial practice that interprets the duty to cooperate in the concrete form of due respect for the State of origin’s mandatory rules on the protection of national cultural heritage. Finally, an emerging principle can be identified in relation to the current focus on the protection and promotion of cultural diversity. This is an area where hard and fast norms of general international law have not yet developed. However, the value of cultural diversity is increasingly permeating international law with the effect of restricting the sphere of domestic jurisdiction and of requiring a careful balancing of this value with other international obligations, especially in the area of free movement of goods and services.
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