Challenges for International Cultural Heritage Law

Transcription

1 University of Technology, Sydney From the SelectedWorks of Ana Filipa Vrdoljak 2015 Challenges for International Cultural Heritage Law Ana Filipa Vrdoljak, University of Technology, Sydney Available at:

2 Challenges for International Cultural Heritage Law Ana Filipa Vrdoljak Word count: 6996 (including references) 1

3 Introduction Daily media reports in January 2014 of the systematic shelling of historic religious and cultural monuments and sites, the targeting of civilian populations, and leveling of entire neighborhoods during the civil war in Syria led to renewed public outcry and international condemnation. These acts are reminiscent of those perpetrated by the combatants during the wars that raged following the break-up of Yugoslavia two decades ago. They replicate strategies engaged in by participants in civil conflicts across time and around the globe. Since the nineteenth century, international law, and more particularly international humanitarian law, has addressed, condemned and prohibited such acts. After the Cold War and in response to the atrocities perpetrated during the Yugoslav wars, the international community expressed its commitment to holding individuals to account by establishing international criminal tribunals. Their jurisprudence and related international developments enriched international humanitarian law and international criminal law. Yet, in the decades since, there has been a waning in the resolve and solidarity of the international community in this aim. While these events and responses have a broad resonance in international law generally, they are also emblematic of the challenges faced by legal efforts to protect and promote cultural heritage globally. The period from the shelling of Dubrovnik, Sarajevo and Mostar in the 1990s to the bombardment of Homs and Aleppo in the 2010s, witnessed the significant expansion of interventionist activities by the international community and then their gradual contraction in this new century. The factors that fostered the cosmopolitan drive during this brief period had a positive impact on the protection of cultural heritage during armed conflict and peacetime. It also puts into stark relief the perpetual challenges facing the legal protection of cultural heritage at the international level, which forms the core of this chapter. In this first part, I consider how the international community is conceived and acts in these circumstances and through the notion of the cultural heritage of humanity and international cooperation, with particular reference to the use of the World Heritage Convention in conflicts from Yugoslavia to Mali. Second, I examine how individuals (and groups) as conceptualized in respect of rights under human rights law, particularly cultural rights and the right to access culture, and responsibilities of perpetrators under international humanitarian law and international criminal law. In essence, this structure serves to illustrate how the state which continues to define and dominate international law remain a central actor in hindering and promoting the protection of cultural heritage within and beyond its territory. 2

4 International community, common heritage and international cooperation This first part takes a macro viewpoint looking outward from the state. But as becomes clear the themes are reflective and complement changes evolving on the micro level and examined in the second part of this chapter considering the individual. The challenges that plague the protection of cultural heritage at the international level today, characterize the persistent limitations of international law generally. Indeed, it is a telling case study for international law and the ongoing privileging of the state and national interests in its articulation and implementation. Yet, there is a clear transition from understandings of a society of states to an international community, which is exemplified in evolving meaning of the cultural heritage of humankind and international cooperation over the last century and a half. The earliest attempts to codify international law principles in the modern period occurred in the nineteenth century with efforts to set down the laws of war between states. The unencumbered ability to engage in war was viewed as a prerogative of the state. These initiatives to humanize the impact of war on civilians were extended into an international concern to limit its effects on cultural property. The Regulations annexed to the 1899 Hague II and 1907 Hague IV Conventions both reference the need to protect movable and immovable heritage during armed conflict and belligerent occupation. 1 The Hague Conventions were recognized as customary international law, that is, binding even on non- States Parties, by the International Military Tribunal at Nuremberg in The prohibitions contained in these early multilateral treaties have been reaffirmed by subsequent instruments finalized following latter conflicts that visited large-scale loss of life and destruction of cultural heritage, including the specialist 1954 Hague Convention with its 1954 Protocol and 1999 Second Hague Protocol. 2 Three characteristics mark out the movement of the protection of cultural heritage as being beyond the preserve of the state, namely, the articulation of an international community per se, the notion of the cultural heritage of mankind as a common good, and international co-operation in the protection and preservation of this common good. The conceptualization of an international community to oversee the protection of cultural heritage could only occur with the ceding of authority and sovereignty of states through their signing of relevant treaties. Yet, even the World Heritage Convention, 3 which has the highest take up rate of all contemporary international instruments covering the protection of cultural property, that is 190 States Parties of the 193 current Member States of the United Nations 3

5 (as at March 2014), cannot claim to represent the international community in this field (Francioni 2008:5). Under treaty law, the obligations under the WHC are not obligations owed to the world at large, but rather are owed to the other States Parties to the Convention (O Keefe 2004:189). However, the U.N. Security Council has taken the protection of sites listed under the WHC beyond these narrow contractual strictures. This occurred with S.C. Resolution 1468 of 2003 concerning the dispersal of cultural objects during the Iraq conflict and occupation, which bound all U.N. Member States even if they were not signatories to the 1954 Hague Convention and Protocol or the 1970 UNESCO Convention. 4 Similarly, the European Union has called on its Member States to prevent the transfer and facilitate the return of cultural objects removed from Syria since the start of the civil war in While efforts to define an international community beyond the territorial boundaries of states have been slow, there has been movement the other way. That is, the interjection of the international community in respect of cultural heritage in danger on the territory of a state. Starting with the Nuremberg Tribunal judgment in the mid-twentieth century, 6 to the jurisprudence of the ICTY, 7 and the recent referral by the Mali to the International Criminal Court s Prosecutor (Coulibaly 2012), there has been a gradual (but sporadic) expansion of the protection of cultural heritage under international humanitarian law beyond inter-state armed conflicts to civil conflicts. Indeed, the U.N. Secretary General called on the Security Council in 2012 to impose sanctions on the perpetrators of attacks on religious and cultural sites in Timbuktu that are designated as part of the indivisible heritage of humanity (B. Ki-moon 2012). This move reinforces the transition from a society of states which defined international law-making and the protection of cultural heritage with it until the mid-twentieth century, to an international community driven by common core values to which all states are answerable even for acts perpetrated by them on their own territory. So, for instance, the cultural landscape and archaeological sites of the Bamiyan Valley were inscribed on World Heritage List and the List of World Heritage in Danger in 2003 because of its importance as a representation of the Gandharan School in Buddhist art in Central Asia but also as testimony to the destruction of the monuments which shook the world. 8 However, it is important to note the limitations of these examples Nuremberg has often been criticized as victor s justice, the ICTY covered conflicts arising from dismantling of a federated state, and the Malian referral was undertaken by the government against rebel forces. These limitations are multiplied in respect of damage and destruction perpetrated 4

6 within a state during peacetime. Perhaps the most celebrated recent example is the destruction of the monumental Buddhas of Bamiyan, Afghanistan by the Taliban in 2001, where the international community could do little more than condemn this act of destruction through a UNESCO Declaration and in various U.N. fora. The key concept grounding a notion of international community is the cultural heritage of humanity. This idea has permeated the earliest articulations of protection of cultural heritage in modern international law and is consistently referenced in contemporary instruments in the field. 9 For example, the Underwater Heritage Convention recognizes such heritage as: [A]n 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 concerning their common heritage. 10 This concept draws upon a principle in international law that covers outer space, the seas, Antarctica but it is distinguishable from how it is generally applied. The common heritage of mankind is understood as a common good to be enjoyed by all peoples and across generations and is informed by related international environmental law principles. According, the ICTY in its judgment concerning the shelling of Dubrovnik in 1991 found that perpetrated war crimes as they had deliberately targeted the World Heritage listed site that was of outstanding universal value. 11 Likewise, when investigating the referral by Mali, the ICC Prosecutor found that the destruction of the World Heritage listed mausoleums in Timbuktu in early 2012 was prima facie a war crime the acts involved sites and objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of the people (ICC Prosecutor 2013:31). The joint UN-UNESCO Statement on Syria in March 2014 concluded with a plea that: Now is the time to stop the destruction, build peace and protect our common heritage (B. Ki-moon et al 2014). Yet, communities, particularly indigenous peoples, resist the application of the broader international law concept of common heritage of humankind to cultural heritage. It is viewed as yet another manifestation of removing their agency in respect of their own cultural heritage. It is important to note that invariably when the phrase is used in respect of cultural heritage, it is accompanied by the following phrase: since each people makes its contribution to the culture of the world. 12 In nineteenth century treaties, cultural heritage was protected as a common good in international law not simply because of its importance to advancement of knowledge and of the arts and sciences for all humanity. By the mid-twentieth century, there 5

7 was recognition of its importance as the manifestation of cultural diversity, because of its relationship to the relevant community for whom it is significant for their collective identity and development. This shift is reflected in the resurgent recognition of the importance of access to cultural heritage for the enjoyment of human rights, especially cultural rights, of individuals and members of groups like minorities and indigenous peoples (Shaheed 2011). While the protection of cultural heritage during armed conflict and belligerent occupation has expanded little to cover intangible heritage, the increasing cross-fertilization of international humanitarian law and human rights law enables an expansive interpretation of existing legal protections that cover cultural rights and intangible heritage (Vrdoljak 2008:250). That said, the promotion of cultural diversity in the protection of cultural heritage is not tolerated where it violates the human rights of members of vulnerable groups like women, people with disabilities, children and so forth (Shaheed 2012). As explained below, this qualifier is contained in recent international instruments for the protection of cultural heritage and promotion of cultural diversity. The idea of an international community is further elaborated in the protection of cultural heritage in international law through the obligation concerning international cooperation. The 1966 UNESCO Declaration on the Principles of International Cultural Cooperation acknowledged that each culture has a dignity and value which must be respected and preserved and in their rich variety and diversity, and their reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind. 13 The Declaration itself adds little by way of explicit content concerning international cooperation. Specialist cultural heritage instrument also reference this obligation. The 1954 Hague Convention covering protection during armed conflict begins: [I]t is important that this heritage should receive international protection; Being of the opinion that such protection cannot be effective unless both national and international measures have been taken to organize it in time of peace 14 The 1972 World Heritage Convention that covers protection during war and peacetime states: Considering that, 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, organized on a permanent basis and in accordance with scientific methods 15 6

8 These instruments and those that followed which likewise refer to an obligation of international cooperation do provide it with content as it relates to the relevant treaty. 16 Some instruments are more firmly entrenched in an understanding of international cooperation as being contractual as between states, and more particularly States Parties to the relevant convention. 17 Others arguably move beyond this narrow understanding of the international community to encapsulate obligations upon an entity beyond its States Parties. 18 In its purest form, this is exemplified in the application of the obligation on neutral or third party states, that is, states that are not bound because of existing treaty obligations or customary international law. For example, the restitution processes which occurred following the Second World War and that obligation contained in S.C. Resolution 1483 of 2003 on Iraq. 19 This development intrinsically arises from the notion that if the protection of cultural heritage at the international level is ground in its importance to all humanity, and this is a value especially protected by the international community, then all states have a interest in [its] protection. 20 Yet, these examples are rare. International cooperation is vital for the enforcement of legal obligations concerning cultural heritage against individuals and between States. Under the 1972 World Heritage Convention, international protection of world cultural heritage is defined as a system of international co-operation and assistance designed to support States Parties in their efforts to conserve and identify that heritage. 21 The Convention requires States Parties to assist in the identification, protection, conservation and presentation of world heritage wherever it is located (provided assistance is requested from the State on whose territory the site is located) and not to take deliberate measures which may directly or indirectly damage sites on the territory of other States Parties. 22 Invariably, multilateral treaties covering cultural heritage promote this rationale of assistance in the protection and conservation among the Contracting States. The 2001 UNESCO Declaration on Intentional Destruction urged cooperation in respect of the exchange of information concerning possible risks of intentional destruction, consultation in respect of actual or impeding acts of destructions, and assistance for educational programs and capacity building for prevention and repression. 23 Similarly, the S.C. Resolution 2139 of 2014 on Syria called on all parties to the conflict to save [its] rich societal mosaic and cultural heritage, and take appropriate steps to ensure the protection of Syria s World Heritage Sites. 24 This stance is proactive. 7

9 But more often the request for cooperation is reactive, hence the call for repression. So, for instance, S.C. Resolution 1483 of 2003 on Iraq called on all U.N. Member States to prohibit the trade in and facilitate the safe return of cultural objects illicitly removed from Iraqi territory during the conflict and occupation. 25 It also called on the cooperation of relevant international organizations like UNESCO and Interpol which emphasizes that the international community is not the sum of states. Likewise, the request by Malian authorities for the ICC Prosecutor to investigate and prosecute rebels responsible for the destruction of ancient mausoleums and looting of manuscripts on its territory (Coulibaly 2012; B. Ki-moon 2012b; African Union 2012; and ICC Prosecutor 2013 Coulibaly 2012; B. Ki-moon 2012b; African Union 2012; and ICC Prosecutor 2013 (Coulibaly 2012; B. Ki-moon 2012b; African Union 2012; and ICC Prosecutor 2013). Both a State Party and the U.N. Security Council can refer acts against cultural property which amount to war crimes, crimes against humanity or genocide for investigation and prosecution by the International Criminal Court. 26 As explained below, examples of individuals or groups of individuals being held to account for such acts are isolated. Usually, a State sanctions an investigation and prosecution of acts that have occurred on its own territory, it relates to conduct of anti-government or opposition forces or a deposed regime. While the international community may condemn such acts within states it remains reluctant to breach the sovereignty and territorial integrity of states. Similarly, while international instruments concluded after the 1990s extend universal jurisdiction to international crimes involving cultural property. 27 There are no examples of a state invoking jurisdiction on this basis for such crimes to date. Individuals, groups and human rights The increasing recognition of the individual in international law since the mid-twentieth century has not only whittled down the pervasiveness of the state; it has profoundly shaped the interpretation and implementation of rights and obligations as they related to cultural heritage. Human rights law norms have been a driving force in reconfiguring what constitutes cultural heritage in international law and how it is to be protected. In opening up the field, it has also laid bare the competing and conflicting interests involved. This second part highlights how the themes explored in respect of the international community are mirrored on the micro level concerning developments relating to the individual. It provides an overview of how the definition of cultural heritage has altered and how those with rights to cultural heritage have moved beyond state interests alone. Then, as will be shown, this development is most overtly defined with claims to access to cultural heritage as part of cultural human 8

10 rights. Finally, there is a brief explanation of how in international law it is the individual as perpetrator rather than the state or group that is held criminal responsible for acts against cultural heritage. While the Universal Declaration of Human Rights adopted by the U.N. General Assembly in 1948 contains several rights that encompasses cultural rights broadly understood. The dedicated provision covering cultural rights is limited in its scope. Article 27 recognizes that right of everyone to freely participate in the cultural life of the community. 28 This provision has undergone fundamental changes in its interpretation by adopting an expansive interpretation of culture and moving beyond the individual right-holder. The changes mirror those described above in respect of the protection of cultural heritage under international humanitarian law. This human right was originally interpreted as the right of individuals to participation in national cultural life, with culture confined to so-called high culture like museums, libraries and theatres (Donders 2002:139). In recent decades, it has been redefined as a right of a person as an individual, in association with others or within a community to participate in the culture of their choice (CESCR 2009). States Parties to the International Covenant on Economic, Social and Cultural Rights (Art.15 ICESCR), 29 which translated this into treaty law, are required to remove obstacles to one s own culture or other cultures without discrimination and without consideration for frontiers of any kind (CESCR 2009). Likewise, recent multilateral instruments adopted under the auspices of the U.N. specialist agency on culture, UNESCO have not only promoted the importance of cultural diversity for humanity, 30 but also recognized other stakeholders beyond states including individuals, communities (e.g. minorities, indigenous peoples), and the international community. 31 U.N. human rights bodies have advised that cultural diversity and protection for the long-term viability of cultural groups is important for the community itself and the entire society (HRC 1994). Accordingly, the United Nations and its agencies have explicitly condemned forced assimilation policies and practices as illegal ; 32 while noting that a measure of integration is necessary for a state to respect and ensure human rights to every person within its territory without discrimination (U.N. 2005). The prohibition against forced assimilation relates to the acts of states and non-state actors. Similarly, the definition of culture and cultural heritage has altered with the interpretation of the right to cultural life. This is reaffirmed by the U.N. Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No.21, which emphasizes the need to 9

11 move away from the material aspects of culture (such as museums, libraries, theatres, cinemas, monuments and heritage sites) and embrace proactive measures that also promote effective access by all to intangible cultural goods (such as language, knowledge and traditions) (CESCR 2009). The Committee has noted that: Culture shapes and mirrors the values of well-being and the economic, social and political life of individuals, groups of individuals and communities (CESCR 2009). The transformation in the definition of culture entails an emphasis on its living or evolving nature, that is transmitted from generation to generation (Shaheed 2011). This development in human rights law has been complemented by the evolution of multilateral agreements covering the protection of cultural heritage. Prior to the 1990s (and the 1976 UNESCO Recommendation on the Right to Participate in Cultural Life), treaties covered tangible heritage. 33 In the intervening years, multilateral agreements have been concluded on intangible heritage and cultural diversity. 34 Indeed, the World Heritage Convention through its revised Operational Guidelines in 1992 became the first multilateral instrument to recognize cultural landscapes, a mode of protecting the intangible as well as the tangible aspects of a protected site (WHC 1992). For example, a site may be listed as an associative cultural landscape on the World Heritage List because of its powerful religious, artistic or cultural associations of the natural element rather than material cultural evidence, which may be insignificant or even absent (WHC 2008 Annex). Similarly, the scope of the Intentional Destruction Declaration explicitly covers: cultural heritage including cultural heritage linked to a natural site. 35 Recent cultural heritage agreements also refer to future generations, present and future generations or succeeding generations. 36 The recognition of a more holistic understanding of cultural heritage and broader range of stakeholders had laid bare the inherently conflicting claims to it and its interpretation. Contestation may involve competing claims including: between an individual (asserting the right to property) and the state (promoting its right to protecting the national cultural patrimony) seeking to prevent the sale of a privately owned artwork on the international art market; 37 between the state (and the international community) and a group as in the case of the destruction of the mausoleums and looting of manuscripts in Mali; 38 between two states, and example of the decades-long conflict between Thailand and Cambodia concerning the Temple of Preah Vihear; 39 between a state and the international community as occurred with the destruction of the Buddhas of Bamiyan by the then government of Afghanistan; and 10

12 between an individual asserting the right to participate one s culture and the community asserting the right to determine membership of the group. 40 Contemporary instruments covering cultural heritage and diversity make clear that neither the state nor groups can invoke culture or religion to derogate from human rights norms. The UNESCO Cultural Diversity Declaration explicitly provides that promotion and protection of cultural diversity cannot be used to justify violations of existing human rights norms. 41 Likewise, human rights instruments stipulate that the exercise and enjoyment of cultural rights cannot violate others human rights. 42 The CESCR has indicated in respect of the right to participate in cultural life that no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope (CESCR 2009). So for example, the Committee has found that it is mandatory for States Parties to ensure equality between men and women in respect of the right to participate in cultural life by eliminating institutional and legal obstacles as well as those based on negative practices, including those attributed to customs and traditions (CESCR 2009). Yet, States Parties to a range of human rights treaties (in particularly on Convention on the Elimination of all forms of Discrimination against Women and the Convention on the Rights of the Child) have invoked religion or culture to limit their obligations under these instruments (Donders 2013:205). The right to participate in cultural life is further elaborated by the fact that it is defined as a freedom that rests with the individual. In its most stark form this is manifested as the right to exit the group. The CESCR has noted that [t]he decision by a person whether or not to exercise the right take part in cultural life individually, or in association with others, is a cultural choice and, as such, should be recognized, respected and protected on the basis of equality (CESCR 2009). The intersection of human rights law and legal protection of cultural heritage has become overt in deliberations around the right to access cultural heritage. As noted earlier, multilateral instruments concerning the protection of cultural heritage contain an inherent bias toward the states. Indeed, even in those instances where other stakeholders are acknowledged and referenced in these treaties, it is a state which decides to sign up to the instrument s obligations and its implementation must come from the relevant State Party. Nonetheless, reflective of the increasing influence of human rights law jurisprudence on the interpretation of existing cultural heritage instruments and vica versa, the rights (and obligations) of States as they relate to cultural heritage even in long established instruments 11

13 are being redefined. So, for instance, the 1970 UNESCO Convention concerning the illicit transfer of cultural objects is often referenced as a strikingly state-centric treaty. Yet, in the decades since the end of the Cold War, U.N. human rights bodies and the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP) have emphasized the obligation of States Parties to ensure that vulnerable groups (particularly minorities and indigenous peoples) within their territory do not suffer cultural loss as a consequence of the illicit trade and if objects are removed that it facilitate its return (Vrdoljak 2012). This shift is exemplified by the diplomatic efforts of the United States (and non-governmental organizations) on behalf of the Hopi, an indigenous community within its territory, to prevent the public auction in Paris in 2013 of ceremonial masks created by them (Mashberg 2013). Perhaps the most significant (but also limited) movement indicative of this shift and synergy between these two fields is the overt recognition of a right to participate in the protection of cultural heritage. For example, Article 15 the Intangible Heritage Convention provides that: Within the framework of its safeguarding activities of the intangible cultural heritage, each State Party shall endeavor to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management. Yet, this provision is substantially narrower than that proposed in earlier drafts and the Convention has been criticized not only for reducing the role to non-state actors but emphasizing the role of the state through the inclusion of a system of listing heritage that attracts protection under the treaty. Nonetheless, the significance of this development should not be underestimate or its ripple effect on other pre-existing instruments in the field of cultural heritage law. While the 1972 World Heritage Convention does not contain such a provision, its Operational Guidelines were amended to recognize a partnership approach to nomination, management and monitoring of World Heritage sites by individuals and other stakeholders, especially local communities, governmental, non-governmental and private organizations and owners as providing a significant contribution to the protection and the implementation of the Convention (WHC 2008). The fullest example of this approach is the Council of Europe s Framework Convention on the Value of Cultural Heritage for Society of 2005 recognizes the right of individuals and communities to participate in the protection of cultural heritage. 43 This agreement provides a 12

14 framework of reference for heritage policies and underpin[] existing Council of Europe instruments concerning more specific aspects of cultural heritage (CE 2005). Drawing inspiration from the 1998 Aarhus Convention, developed and adopted in respect of environmental law matters, the Faro Convention embraces a multi-stakeholder and shared responsibility approach to cultural heritage and extends standing to non-governmental organizations. 44 Human rights jurisprudence, including that of the International Court of Justice, suggests that the interpretation of these principles as developed to protect the environment can inform their application for the protection of cultural heritage. 45 Yet, this development comes with a caveat. As noted earlier, there are often multiple (and competing) stakeholders for the protection of cultural heritage and its is therefore not surprising that when the U.N. Special Rapporteur on Cultural Rights in her report on Access to Cultural Heritage noted the varying degrees of access and enjoyment may be recognized, taking into consideration the diverse interests of individuals and groups according to their relationship with specific cultural heritage. She notes a general call by a State Party for participation is insufficient. Rather States, and courts which may be required to decide cases involving competing claims, must be alive to this diversity of interests (Shaheed 2011). Significantly, and in contrast to the limited form of rights recognized under international cultural heritage law flowing to non-state actors, it is only individuals that attract criminal sanctions for violations of international humanitarian law and international criminal law. Despite unsuccessful efforts to hold high-ranking officials criminally responsible for acts perpetrated against cultural property during the First World War, the first successful prosecution by the international community occurred before the International Military Tribunal Nuremberg and subsequent related proceedings (IMT 1947:237). The IMT Judgment observed: Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced (IMT 1947:221). The criminal responsible of individuals in this field is reaffirmed in recent decades through the work of the ICTY and ICC (Vrdoljak 2008:280). The international community has persistently refused to recognize the criminal responsible of states (Crawford 2002:37, ). Indeed, when called upon to revisit this point in the Genocide case in respect to the destruction of cultural property, the International Court of Justice affirmed this position. 46 Conversely, it is important to note that non-state actors are increasingly called upon to act consistently with the treaty obligations for the 13

15 protection of cultural heritage that explicitly relate to States Parties. For instance, the Joint UN-UNESCO Statement on Syria calls on: [A]ll countries and professional bodies involved in customs, trade and the art market, as well as individuals and tourists to not engage in the illicit transfer of cultural objects and adhere to the UNESCO 1970 Convention (B. Ki-moon et al 2014). Conclusion More than half of the multilateral instruments that make up the contemporary international legal framework for the protection of cultural heritage were adopted in the decades after the end of the Cold War. These later treaties have profoundly broadened the definition of what is being protected and the range of stakeholders attracting rights and obligations. Protection is no longer confined to tangible cultural heritage. And those recognized as subjects are have moved beyond states. States remain the dominant actors, but their role is being significantly redefined. This growth in articulation of international cultural heritage law has exposed existing concerns and attracted new challenges. The proliferation in specialist instruments has not always been met by uniformity in purpose. Rather than succumb to the ever-increasing temptation to adopt another specialist convention either through UNESCO or other U.N fora and thereby potentially limit existing protections; there is a clear need to better understand how these instruments operate together. Perhaps what is required is a framework instrument, like the Council of Europe s Faro Convention, which gives an overarching set of principles inspired by developments in human rights and environmental law, by which all existing international cultural heritage treaties must be interpreted. This approach would enhance the promotion of cultural heritage in a more holistic sense, and enable the effective participation of the international community, communities, groups, and individuals in its protection. This path would provide a coherent and consistent approach and reinforce the direction embraced by recent treaties. Ana Filipa Vrdoljak is Professor of Law, Faculty of Law, University of Technology, Sydney. She is the author of International Law, Museums and the Return of Cultural Objects (CUP 2006), editor of The Cultural Dimension of Human Rights Law (OUP 2013), and co-general Editor (with F. Francioni) of the OUP book series Cultural Heritage Law and Policy. Cultural heritage international law human rights international community individual 14

16 1 Convention (II) with Respect to the Laws and Customs of War on Land, with Annex, 29 July 1899, 1 A.J.I.L. (1907) vol.1 (supp.) p.129 ('1899 Hague II'); Convention (IV) Respecting the Laws and Customs of War on Land, and Annex, 18 October 1907, A.J.I.L. (1908) vol.2 (supp.), p.90 ('1907 Hague IV'). 2 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, entered into force 7 August 1956, 249 UNTS 240 ('1954 Hague Convention'); Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, entered into force 7 August 1956, 249 UNTS 358 ('1954 Hague Protocol'); and Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999, entered into force 9 March 2004, 2253 UNTS 212 ('1999 Second Hague Protocol'). 3 Convention concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, entered into force 17 December 1975, 1037 UNTS 151 ('World Heritage Convention'). 4 S.C. Res.1483 of 22 May 2003, para.7; and Art.11, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, entered into force 24 April 1972, 823 UNTS 231 ('1970 UNESCO Convention'). See in respect of the Syrian conflict: B. Ki-moon et al (2014); and the Council Decision 2013/760/CFSP of 13 December 2013, O.J. L 335/50 of Council Decision 2013/760/CFSP of 13 December 2013., Art.3. 6 International Military Tribunal (Nuremberg), Trial of the Major War Criminals, Judgment of 1 October 1946, A.J.I.L. (1947) vol.41, p Prosecutor v Dusko Tadic, No.IT-94-1-A, ICTY Appeals Chamber (2 October 1995), pp World Heritage Committee, Decision to inscribe the Cultural Landscape and Archaeological Remains of the Bamiyan Valley, Afghanistan, 27 COM 8C.43, 10 December See Second recital, Preamble, 1954 Hague Convention.; Sixth recital, Preamble, World Heritage Convention; Fifth recital, Preamble, Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, entered into force 20 April 2006, 2368 UNTS 1; Second recital, Preamble, Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005, entered into force 18 March 2007, 2440 UNTS 311('Cultural Diversity Convention'). 10 First recital, Preamble, Convention on the Protection of Underwater Cultural Heritage, 2 November 2001, entered into force 2 January 2009, 41 ILM 40 (2002) ( UHC'). 11 Prosecutor v. Miodrag Jokic, Judgment, No.IT-01-42/I-S, ICTY Trial Chamber I, 18 March 2004, p Second recital, Preamble, 1954 Hague Convention; Sixth recital, Preamble, Intangible Heritage Convention; and Seventh recital, Preamble, Cultural Diversity Convention. 13 Declaration of Principles of International Cultural Co-operation, adopted by UNESCO General Conference, 4 November Third and fifth recitals, Preamble, 1954 Hague Convention. 15 Eighth recital, Preamble, World Heritage Convention. 16 See Second and tenth recitals, Preamble, UHC; 11 th recital, Preamble, Intangible Heritage Convention; Art.1(i), Cultural Diversity Convention; and Art.VI, Intangible Heritage Convention. 17 See 1970 UNESCO Convention; and UHC. 15

17 18 See World Heritage Convention; and Intangible Heritage Convention. 19 Agreement between the United States, the United Kingdom and France in respect of the Control of Looted Works of Art, 8 July 1946, entered into force 8 July 1946, Department of State Bulletin (1951), vol.25, p.340; and S.C. Res.1483 of 22 May 2003, UN Doc S/RES/1483(2003). 20 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports (1996) p.226 at p Art.7, World Heritage Convention. 22 Art.6, World Heritage Convention. 23 Declaration concerning the Intentional Destruction of Cultural Heritage, 17 October 2003, UNESCO Doc.32C/Res.39 ('Intentional Destruction Declaration'):, Art.VIII. 24 S.C. Res.2139 of 22 February 2013, UN Doc S/RES/2139(2014). 25 S.C. Res.1483 of 22 May 2003, UN Doc S/RES/1483(2003), para Arts 13 and 14, Rome Statute of the International Criminal Court, 17 July 1998, entered into force 1 July 2002, 2187 UNTS 90 ('Rome Statute'). 27 Art.16, 1999 Second Hague Protocol; and Art.VIII(2), Intentional Destruction Declaration. 28 Universal Declaration of Human Rights, G.A. Res.217A(III) of 10 December 1948 ('UDHR'). 29 International Covenant on Economic, Social and Cultural Rights, G.A. Res.2200A(XXI) of 16 December 1966, entered into force 3 January 1976, UN Doc A/6316(1966), 993 UNTS 3 ( ICESCR ). 30 See Universal Declaration on Cultural Diversity, adopted by UNESCO General Conference on 2 November 2001, UNESCO Doc.31C/Res.24, Annex ('Cultural Diversity Declaration').; and Cultural Diversity Convention. 31 See 1954 Hague Convention refers to peoples and all mankind ; 1970 UNESCO Convention makes reference to nations ; World Heritage Convention refers to nations, mankind as a whole ; Cultural Diversity Convention refers to groups, societies, humanity, citizens, civil society, minorities, indigenous peoples, persons, private sector ; UHC references humanity, peoples, nations, international organizations, scientific institutions, professional organizations, archaeologists, divers, other interested parties, and the public at large ; Intangible Heritage Convention mentions communities, in particular indigenous communities, groups, humanity, individuals ; Intentional Destruction Declaration refers to cultural identity of communities, groups and individuals ; and Cultural Diversity Convention referring to humanity, communities, peoples and nations, peoples and societies, minorities and indigenous peoples, women, individuals, groups or societies. 32 Art. 1(1), Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, G.A. Res.47/135 of 18 December 1992, UN Doc A/RES/47/135 ('UNDRIP'). 33 See 1954 Hague Convention; 1970 UNESCO Convention; and World Heritage Convention. 34 See Intangible Heritage Convention; and Cultural Diversity Convention. 35 Art. II, Intentional Destruction Declaration. 36 Art.4, World Heritage Convention; Art.1, Cultural Diversity Declaration; and Art.I, Intentional Destruction Declaration. 16

18 37 See Beyeler v. Italy, Application No.33202/96, Grand Chamber, ECHR, Judgment of 5 January See D.H. and Others v The Czech Republic, Application No.57325/00, Grand Chamber, ECHR, Judgment of 13 November Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Judgment), International Court of Justice, 11 November Lovelace v Canada Communication No.24/1977, Human Rights Committee, UN Doc A/36/40(1981). 41 Art. 4, Cultural Diversity Declaration. See Art.2(1), Intangible Heritage Convention, and Art.2(1), Cultural Diversity Convention. 42 See 18th recital, Preamble, Recommendation on the Right to Participate in Cultural Life, adopted by UNESCO General Conference on 26 November 1976; and CESCR (2009). 43 Art.12, Framework Convention on the Value of Cultural Heritage for Society, 27.X.2005, entered into force 1 June 2011, CETS No.199 ('Faro Convention'). 44 Art.11 Faro Convention. See Arts 2(5) and 9(2), Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 28 June 1998, entered into force 30 October 2001, 2161 UNTS 447 ('Aarhus Convention'); and CE (2005) concerning Art Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (2010) ICJ Reports p.14 at para Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment (2007) ICJ Reports p