International Law and the Protection of Cultural Heritage 0415467810, 9780415467810, 0203865197, 9780203865194

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International Law and the Protection of Cultural Heritage

Craig Forrest

International Law and the Protection of Cultural Heritage

The world’s cultural heritage is under threat from war, illicit trafficking, social and economic upheaval, unregulated excavation and neglect. Over a period of almost fifty years, the United Nations Educational, Scientific and Cultural Organisation has adopted five international conventions that attempt to protect this cultural heritage. This book comprehensively and critically considers these five UNESCO cultural heritage conventions. The book looks at the conventions in the context of recent events that have exposed the dangers faced by cultural heritage, including the destruction of cultural heritage sites in Iraq and the looting of the Baghdad museum, the destruction of the Buddhas of Bamiyan in Afghanistan, the salvage of artefacts from the RMS Titanic and the illicit excavation and trade in Chinese, Peruvian and Italian archaeological objects. As the only existing work to consider all five of the cultural heritage conventions adopted by UNESCO, the book acts as an introduction to this growing area of international law. However, the book does not merely describe the conventional principles and rules, but critically evaluates the extent to which these international law principles and rules provide an effective and coherent international law framework for the protection of cultural heritage. It is suitable for not only those schooled in the law, but also for those who work with cultural heritage in all its manifestations seeking a broad but critical consideration of this important area of international law. Craig Forrest is a Reader in law at the TC Beirne School of Law at the University of Queensland, Australia.

International Law and the Protection of Cultural Heritage

Craig Forrest

First published 2010 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2010 Craig Forrest Typeset in Baskerville by Glyph International

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data Library of Congress Cataloging in Publication Data Forrest, Craig James Stuart. International law and the protection of cultural heritage / Craig Forrest. p. cm. Includes bibliographical references 1. Cultural property--Protection (International law) I. Title. K3791.F67 2009 344’.094--dc22 2009021161 ISBN10: 0-415-46781-0 (hbk) ISBN13: 978-0-415-46781-0 (hbk) ISBN10: 0-203-86519-7 (ebk) ISBN13: 978-0-203-86519-4 (ebk)

Contents

Table of Conventions and other international instruments Table of cases Preface 1

Defining cultural heritage in international law Introduction 1 The notion of cultural heritage 1 The values attributable to cultural heritage 3

xii xv xix 1

The expressive value of cultural heritage 4 Preservation of archaeological and historical evidence 5 Economic value 5

To whom the cultural heritage is of value 7 Group or community 8 The nation 9 Humankind 11

The meaning of protection 14 Physical protection 14 Protection in situ 15 Protection of visibility and accessibility 15 Retention of cultural heritage 16 Protection as co-operation 17 Conclusion 18

The legal value of cultural heritage 19 The definition of cultural heritage in International Conventions 20 Conclusion: For the purposes of the present Convention 28 Post script: A note on terminology 29 2

International legal framework 31 Introduction 31 The International Law of Conventions 32 The adoption of Conventions and consent by States to be bound 32 Protocols 35

Reservations 36

vi

Contents Entry into force 38 Revision of Conventions 39 Retrospectivity of Conventions 40 The national implementation of international Conventions 41 Interpretation of Conventions 44 The binding nature of Conventions 48 The State in whose territory the cultural heritage is found 48 Other States Parties to a Convention 49 Third States 50 The international community 51 Customary international law 52 Soft law 54

3

Cultural heritage and armed conflicts Introduction 56 The armed conflict in the Balkans 57 Iraq and the Gulf Wars 59 A history of war and cultural heritage 63 The Hague Regulations 67 The First World War and its aftermath 69 The Second World War and the 1949 Geneva Conventions 73 The doctrine of military necessity 76 1954 Hague Convention 78 Overview of the Convention 78 The preamble’s guiding principles 80 Scope of Application of the Convention 81 Definition of cultural property 85 The core Conventional duties 87 Safeguarding cultural property 87 Respect for cultural property 89

Occupation 93 Special protection 97 Special protection and the military necessity exception 99

The international regulatory regime 102 First Protocol and occupation 104 The 1977 Additional Protocols to the Geneva Conventions 108 The 1999 Second Protocol 110 General provisions regarding protection 112 The enhanced protection regime 117 The list of cultural property under enhanced protection 118 Enhanced protection and military necessity 119

Penal sanctions 122

56

Contents vii New institutional arrangements 126 The protection of cultural property during armed conflict and customary international law 127 Conclusion 130 4

The return, restitution and repatriation of movable cultural heritage Introduction 132 The history of the protection of movable cultural heritage 133 The return, restitution and repatriation framework 136 The market for cultural heritage 136 Defining terms of movement 140 Restitution 140 Return 142 Repatriation 144

Place of origin 145 Identifying the physical origin 146 Identifying the cultural origin 146

Concepts of ownership 148 Private ownership 148 State ownership 150 State ownership through forfeiture 153

Export restrictions 153 Effectiveness of national laws 155 The retentionist debate 157 Return of cultural heritage 160 The universal museum 164 The return of human remains 165 The 1970 Convention 166 The negotiation history 166 The preamble’s guiding principles 167 Definition of cultural property 168 National cultural property 170 Making illicit the export and import of cultural property 174 The export and import regime 176 An expanded interpretation of the export and import regime 177 A narrow interpretation of the export and import regime 178 The timing of the illicit export and import 183

Transfer of ownership of cultural property 183 National services and duties that address the illicit trade in cultural property 185 Sanctions 187

132

viii

Contents Occupied and controlled territories 188 Bilateral agreements 189 Participation in the Convention 191 An evaluation of the Convention 195 The 1995 UNIDROIT Convention 196 The preamble’s guiding principles 198 Defining cultural objects 199 Scope of the Convention 200 The restitution of stolen cultural objects 201 The right of the original owner to restitution 202 Time limitations 204 Compensation 206

Illegally exported cultural objects 208 Time limitations 212 Compensation 212 The exception to the rule 214

Jurisdiction 215 Non-retrospectivity 217

An evaluation of the UNIDROIT Convention 218 The illicit trade in Iraqi cultural property 219 5

World Heritage Convention Introduction 224 National protection for monuments 224 The development of the Conventional regime 226 The World Heritage Convention 227 The preamble’s guiding principles 228 Defining world cultural heritage 230 Determining ‘outstanding universal value’ 232 Outstanding universal value as an evolving concept 233 The 2008 Operational Guidelines’ criteria for outstanding universal value 236 The legal meaning of outstanding universal value 237

Authenticity and integrity 238 The protection and management regime 240 Defining the natural heritage 240 National protection of cultural heritage 241 International protection of cultural heritage 244 Deliberate actions of a State that damages the World Heritage 245 Property rights and national legislation 246 The World Heritage Committee 247 The World Heritage List 248 The Tentative List 250

224

Contents ix Nomination and listing of cultural heritage on the World Heritage List 252 The List 255 The List of World Heritage in Danger 257 World Cultural Heritage not Inscribed on the World Heritage List 261 International assistance 262 Cultural heritage eligible for international assistance 263 Types of international assistance 264 Requests and granting of assistance 265 The administration of the international assistance granted 267 The World Heritage Fund 267 The nature of States Parties contribution to the Fund 268 The management of the Fund 269

The administrative framework 271 The advisory bodies 272 The reporting structure 273 The relationship between UNESCO and the World Heritage administrative structure 275 The nature of the international obligations in the World Heritage Convention 276 Obligations erga omnes 277 Enforcement of obligations 278

The temples of Angkor and the Buddhas of Bamiyan 278 The Angkor Archaeological Park 278 Bamiyan Buddhas 279

The future of the Convention 285 Conclusion 286 6

Underwater cultural heritage Introduction 287 From salvage to underwater archaeology 289 Beginnings 289 The nascent discipline of underwater archaeology 291 The continued application of salvage law 292 The Nuestra Señora de Atocha 294 The Geldermalsen 296 The Central America 297 The Titanic 298

The law of salvage and finds 300 Marine peril 300 Voluntary efforts 303 Success 304 Salvor’s rights 304

287

x

Contents Exclusive possession 305 Salvage award 307 Ownership of underwater cultural heritage 309 Finders 312 The conflict between archaeology and salvage 313 The economic exploitation of underwater cultural heritage 314 Ownership of artefacts 316 Splitting up of collections 317 Employment of inappropriate recovery techniques 318 Co-operation between user groups 319 Conclusion 320 International law of the sea 320 Article 149 321 Article 303 323 Council of Europe Draft Convention 329 Salvage Convention 330 Underwater Cultural Heritage Convention 331 The International Law Association initiative 331 The scope of the convention 333 Defining ‘underwater cultural heritage’ 333 Warships and other State owned vessels 335 Identifying the activities to be regulated 338 The geographical scope 339

Good archaeological practice 340 In situ preservation 341

The place of salvage law and the law of finds 342 The development of the non-commercialisation clause 343 The development of the salvage law clause 345

The jurisdictional structure 347 The enforcement regime 350 Authorisation, sanctions and seizure 350 Competent authorities, public awareness and training 354

International co-operation in the protection of underwater cultural heritage 356 International principles and consistency 358 Conclusion 360 7

Intangible cultural heritage Introduction 362 The legal protection of intangible cultural heritage 363 The intangible cultural Heritage Convention 367 The preamble’s guiding principles and context 367 Purpose of the Convention 369 Defining the intangible cultural heritage 371

362

Contents xi The Conventional structure 373 National safeguarding of intangible cultural heritage 374 The international safeguarding of intangible cultural heritage 376 The Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage 377 Representative List of the Intangible Cultural Heritage of Humanity 377 The List of Intangible Cultural Heritage in Need of Urgent Safeguarding 379 International co-operation and assistance 381 The Fund 383

The tangible and intangible relationship 384 Conclusion 385 8

From five international conventions to an international law of co-operation Introduction 388 A convention of its time 388 The extent of overlap between the cultural heritage conventions 390 From norms to international co-operation 396 The normative conventional regimes 397

388

International enforcement 400 Criminal offences against cultural heritage in international law 402 Conventional norms as the sustainer of conflict 403

The co-operative conventional regimes 404 A principled basis for the protection of cultural heritage 405 Cultural heritage as the common concern of humankind 405 Cultural heritage as the common heritage of humankind 406 The international concept of the common heritage of humankind 407 Cultural ‘nationalism’ vs ‘internationalism’ 408

An institutional approach 413 UNESCO’s mandate 413 The relationship between UNESCO and the UNESCO cultural heritage conventions 415 Education 419 Principle of co-operation 421 The future of the international law of co-operation 423 Appendix I: Table of State Parties Appendix II : Defining the Cultural Heritage

425 430

Bibliography Index

434 448

Table of Conventions and other international instruments

1864 Geneva Convention for the Amelioration of the Condition of Wounded in Armies in the Field. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 1868 Declaration Renouncing the Use, in Times of War, of Explosive Projectiles Under 400 Grammes Weight (Declaration of St Petersburg). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 1874 Draft International Regulations on the Laws and Customs of War (the Brussels Declaration) . . . . . . . . . . . . . . . . 66 1899/1907 Convention Concerning the Laws and Customs of War on Land (Convention IV) . . . . . . . . . . . . . . . . . . . . . .53, 67, 78, 80, 85, 87, 127, 130 1910 Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea . . . . . . . . . . . . . . . . 330, 358 1923 Hague Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare . . . . . . . . . . . . . . . . . . . 71, 73 1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (the Roerich Pact) . . . . . . 71, 73, 80–1 1938 League of Nations Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 81, 122 1948 Universal Declaration on Human Rights . . . . . . . . . . . . . . . . . . . . 363, 367 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 75, 81 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea . . . . . . . . . . . . . . . . . . . . . . . . . 73, 75, 81 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 75, 81 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 75, 81 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (and Protocol I and 1999 Protocol). . . . .56–131, 134, 141, 221, 280, 388–9, 391–410, 416–18, 422–3

Table of Conventions xiii 1956 Recommendation on International Principles Applicable to Archaeological Excavations . . . . . . . . . . . . . . 25, 54, 134, 410 1960 Recommendation Concerning the Most Effective Means of Rendering Museums Accessible to Everyone . . . . . . . . . . . . . . . 54 1962 Recommendation Concerning the Safeguarding of the Beauty and Character of Landscapes and Sites . . . . . . . . . . . . . . . . . . . . . 54 1964 International Charter for the Conservation and Restoration of Monuments and Sites . . . . . . . . . . . . . . . . . . . . . 22, 226, 230 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property. . . . . . . . . . . . . . . . . . . . . . . 54–5, 135, 186 1966 International Covenant on Economic, Social and Cultural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367, 389 1966 Declaration of the Principles of International Cultural Co-operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 1966 International Covenant on Civil and Political Rights. . . . . . . . . . . 367, 389 1968 Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works . . . . . 22, 54, 410 1969 Council of Europe Convention on the Protection of the Archaeological Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1969 Vienna Convention on the Law of Treaties . . . . . . . . . . . . . . . . 32–3, 36, 39, 40, 42, 44–8, 53, 217, 393 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. . . . . . . . . . . . . . . . .23, 26–7, 29, 31, 33–4, 36–7, 39–43, 47, 50, 53, 55, 166–96, 358, 389–92, 395–8, 400, 404–5, 409–10, 416–17, 419, 421–3 1972 Convention for the Protection of the World Cultural and Natural Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25, 46, 392, 408 1972 Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 244, 406, 411 1976 Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It . . . . . . . . . . . . . . . . . . 54 1976 Recommendation Concerning the International Exchange of Cultural Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 406 1978 Recommendation for the Protection of Movable Cultural Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 54, 411 1982 United Nations Convention on the Law of the Sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288, 321, 330 1985 European Convention on Offences Relating to Cultural Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 364, 367 1989 Salvage Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320

xiv Table of Conventions 1992 Convention on Biological Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 1992 European Convention on the Protection of the Archaeological Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 347 1993 The Statute of the International Criminal Tribunal for the Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 128–9 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects . . . . . . . . . . . . . . . . . . . .26, 30–4, 37, 39–40, 42, 196–219, 388, 392, 398, 410 1998 Statutes of the International Criminal Court . . . . . . . . . . . . . . . . . . . . . 123 1999 Protocol to the 1954 Hague Convention . . . . . . . . . . . . . . . .34, 36, 40, 46, 97, 102, 110–30, 134, 141, 221, 392, 399, 416–18 2001 Convention on the Protection of the Underwater Cultural Heritage . . . . . . . . . . . . . .22, 33, 35–6, 39–40, 43, 45, 49, 331–61, 390, 394–5, 397, 399, 403–6, 410, 416, 418, 422 2001 International Law Commission’s Article on Responsibilities of States for Internationally Wrongful Acts . . . . . . . . . . . 51 2001 Universal Declaration on Cultural Diversity . . . . . . . . . . . . . . . . . . . . . 368 2001 International Agreement on Plant Genetic Resources for Food and Agriculture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 2003 Convention for the Safeguarding of Intangible Cultural Heritage . . . . . . . . . . . . . . .18, 37, 39–40, 43, 49–52, 367–87, 390, 395–6, 404, 410, 416, 418, 420, 423 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 2005 United Nations Declaration on the Conservation of Historic Urban Landscapes . . . . . . . . . . . . . . . . . . . . . . 240

Table of cases

International tribunals Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) 1970 I.C.J. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Prosecutor v. Blaški´c IT-95-14-T, Judgment, 3 March 2000. . . . . 58, 123, 127, 128 Prosecutor v. Brdanin IT-99-36-PT, 9 December 2003 . . . . . . . . . . . . . 58, 123, 128 Prosecutor v. Duško Tadi´c IT-94-1-AR72, 2 October 1995 . . . . . . . . . . . . . . . . . 129 Prosecutor v. Joki´c IT-01-42/1-S, Trial Chamber Sentencing Judgement, 18 March 2004. . . . . . . . . . . . . . . . . . . . 58, 123, 128 ˇ Prosecutor v. Kordi´c and Cerkez IT-95-14/2-T, Judgment, 26 February 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ˇ Prosecutor v. Kordi´c and Cerkez IT-95-14/2-A, Appeal Judgment, 17 December 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 128 Prosecutor v. Naletili´c and Nartinovi´c IT-98-33-T, Judgment, 31 March 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 123, 128 Prosecutor v. Pavle Struger et al. IT-01-42-PT, 7 July 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Prosecutor v. Plavši´c IT-00-39&40/1, Judgment, 27 February 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 123, 128 Prosecutor v. Staki´c IT-97-24-T, Judgment, 31 July 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Prosecutor v. Struger IT-01-42-T, Trial Chamber Judgment, 31 January 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 128, 129 Australia Commonwealth v. Tasmania (1983) 158 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Richardson v. Forestry Commission of Tasmania (1988) 164 CLR 261. . . 242, 243, 249 Canada Her Majesty The Queen in Right of Ontario v. Mar-Dive Corporation et al. 1997 AMC 1000 . . . . . . . . . . . . . . . . . . . . . . . . 302, 310, 312 R v. Heller, Zango and Kassam (1983) 27 Alta LR (2d) 346 . . . . . . . . . . . . . 146, 183 R v. Yorke (1998) 166 NSR (2d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 213

xvi Table of Cases France Stroganoff-Scherbatoff v. Bensimon 56 Rev. crit. de dr. int. privé (1967), 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Ireland In Re La Lavia, Juliana and Santa Maria de la Vision [1996] 1 Irish Law Reports Monthly 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Netherlands Autocephalous Greek Orthodox Church in Cyprus v. William O.A. Lans, District Court of Rotterdam, Case n.44053 . . . . . . . . . . . . . . . . . . . . . . . 108 Hooge Rad der Nederlanden (1983) 445 NJ 1402 . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Singapore Simon v. Taylor [1975] 2 Lloyd’s Rep. 338 (Singapore High Ct. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303, 310 UK Attorney-General of New Zealand v. Ortiz [1982] 2 WLR 10; [1982] 3 WLR 570; [1983] 2 WLR 809; [1984] AC. 1 (HL) . . . . . . . 153, 154, 213 Bumper Development Corporation Ltd v. Commissioner of Police [1991] 4 All E.R. 638 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146, 156 Case of the vessel Marquis de Somereules 1812 Stew, Adm. 482, 483 (N.S. 1813). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Morris v. Lyonesse Salvage Co. Ltd (The Association & The Romney), [1970] 2 Lloyd’s Rep. 59, 61 (Adm. Ct.) . . . . . . . . . . . . . . . . . . . . . 305, 308 Government of the Islamic Republic of Iran v. Barakat Galleries Ltd [2007] EWHC 705 (Q.B.); [2008] 1 All E.R. 1177 . . . . . . . . . . . . . . . 152, 159, 174 Iran v. Denyse Berend [2007] EWHC 132 (Q.B.). . . . . . . . . . . . . . . . . . . . . . . . . 151 Pierce v. Bemis [1986] Q.B. 384 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 The King of Italy and the Italian Government v. Marquis Cosimo de Medici Tornaquinci, Marquis Averardo de Medici Tornaquinci, and Christie, Manson, and Woods (1918) 34 TLR 623 (Ch D). . . . . . . . . . . . 154 Winkworth v. Christie, Mason and Woods Ltd [1980] CH 496 . . . . . . . . . . . . 149, 174 US Autocephalous Greek Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc. 917 F.2d 278 (7th Cir. 1990). . . . . . . . . . 149, 151, 204 Blackwall, 77 U.S. (10 Wall 1 19L Ed. 870 (1869)) . . . . . . . . . . . . . . . . . . . . . . . 57

Table of Cases xvii Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186 (S.D. Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306 Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 561, 557 (S.D. Fla. 1982) . . . . . . . . . . . . . . . 301, 307, 308 Platoro Ltd., Inc. v. The Unidentified Remains of a Vessel, 614 F.2d 1051, 1055-56 (5th Cir. 1980); 1981 AMC 1087, 1102-03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301, 309 Columbus-America Discovery Group, Inc. v. Unidentified Wreck of the S.S. Central America [1989] AMC 1955 . . . . . . . . . . . . . . . . . . . . . . . . . . . 306 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 42 F.Supp. 1327 (E.D. Va. 1990). . . . . . . . . . . . . . . . . . . . 297, 309 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 974 F.2d 450 (4th Cir. 1992) . . . . . . . . . . . . . . . . . . . 297, 309, 311 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company [1995] AMC 1985, 2007 (4th Cir.). . . . . . . . . . . . . . . . 302 Deep Sea Research, Inc. v. The Brother Jonathan, 883 F.Supp. 1343, 1362 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . 298, 306 Eads v. Brazelton, 22 Ark. 499 (1861) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 E.L. Soba v. Fitzgerald [1997] AMC 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Florida Department of State v. Treasure Salvors, Inc. 458 U.S. 670, 102 S.Ct 3304 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Florida v. Treasure Salvors, Inc. 689 F.2d 1254 (5th Cir. 1982) . . . . . . . . . . . . . . 296 Government of Peru v. Johnson, 720 F.Supp. 810 (CD Cal, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 151, 154, 203 Government of Peru v. Wendt, 933 F.2d 1013 (9th Cir. 1991) . . . . . . . . . . . . . . . . 150 J. F. Moyer v. The Wreck of the Andrea Doria, 836 F.Supp. 1099 (D.N.J. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306, 309 Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1515 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302, 309 Kunstsammlungen Zu Weimer v. Elicofon, 536 F.Supp. 829 (DCNY, 1981), aff’d 678 F.2d 1150 (2nd Cir. 1982) . . . . . . . . . . . . . . . . 151 Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295, 301, 310 MDM Salvage, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 631 F.Supp. 308, 310–11. . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Platoro Ltd. v. The Unidentified Remains of a Vessel, 518 F.Supp. 816 (W.D. Tex. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 R.M.S. Titanic, Inc. v. Wrecked and Abandoned Vessel, 924 F.Supp. 714 (E.D. Va. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . .299, 306, 317 R.M.S. Titanic, Inc. v. Wrecked and Abandoned Vessel, 9 F.Supp. 2d 624 (E.D. Va. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317

xviii Table of Cases R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, Civ. No. 2:93cv902 (E.D. Va. July 28, 2000) . . . . . . . . . . . . . . . . . . . . . . 299 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, 435 F.3d 521 (4th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 The Sabine, 101 U.S. 384 (1880) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 47 F.Supp. 2d 678 (E.D. Va. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 310, 311 State of Florida, Department of State v. Treasure Salvors, Inc. 621 F.2d 1340 (5th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Subaqueous Exploration & Archaeology Ltd. v. The Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597 (D. Md. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302, 305 Thompson v. One Anchor and Two Anchor Chains, 221 F.770 (W.D. Wis. 1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 408 F.Supp. 907 (S.D. Fla. 1976). . . . . . . . . . . . . . . . . . . . . 295 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, (5th Cir. 1978). . . . . . . . . . . . . . . . 295, 301, 310 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 459 F.Supp. 507 (S.D. Fla. 1978). . . . . . . . . . . . . . . . . . . . . 295 United States v. Florida, 420 U.S. 531 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 United States v. Schultz, 333 F.3d 393 (2nd Cir. 2003) . . . . . . . . . . . . . . . . . . . . 152 United States v. An Antique Platter of Gold, 991 F.Supp. 222 (SDNY, 1997), aff’d 184 F.3d 131 (2nd Cir. 1999). . . . . . . . . . 150, 152, 192 United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974). . . . . . . . . . . . . . . . . . 14 United States v. McClain, 593 F.2d 658 (5th Cir. 1979). . . . . . . . . . . . . . . . . . . . 152 Wiggins v. 1100 Tons, More or Less, of Italian Marble (The Clythia), 186 F.Supp. 452 (E.D. Va. 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Zych v. Unidentified, Wrecked and Abandoned Vessel, 755 F.Supp. 213 (N.D. Ill. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

Preface

Article 1 of the Constitution of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) requires the organisation to ‘assure the conservation and protection of the world’s inheritance of works of art and monuments of history and science’. To do so, UNESCO is empowered to ‘recommend such international agreements as may be necessary’.1 Since its inception, five international conventions have been adopted under the auspices of UNESCO to address the protection of cultural heritage. Together these five conventions form the basis for the international law applicable to the protection of cultural heritage. This work considers these five conventions. Attempting to provide a normative protective regime for what is a nebulous, subjective and constantly changing notion is fraught with difficulty. What exactly should we try to protect; what do we mean by ‘protection’; who should be responsible for such protection and how do we actually protect this elusive beneficiary? Much has been written about the difficulties in defining cultural heritage, but for the most part this has been addressed from the perspective of cultural heritage management or archaeological practice. Chapter 1 revisits the key concepts in this debate but with a particular emphasis on the role that law has in the process of identifying cultural heritage. The ascendancy of the notion of cultural heritage owes much to the law. The defining of terms such as ‘cultural heritage’, ‘cultural property’, ‘patrimony’ or ‘antiquities’ in a legal sense, so as to elevate certain goods to a higher realm of ‘protection’, has occurred in national statutes over the past 200 years. More recently, this has occurred at an international level through the adoption of the five UNESCO cultural heritage conventions. How these conventional regimes have addressed the notion of cultural heritage is considered, and provides the basis for the differentiation in the five conventions noted in the following chapters. The focus of this work is essentially the international convention, given that all five UNESCO conventions were adopted in the same form, through the same international body and, in its broadest sense, addresses the same issue – cultural heritage. This work is intended for a wide audience, not merely those schooled in the law. As such, Chapter 2 provides a very basic introduction to the international

1 Article 2(a) and (c), UNESCO Constitution.

xx Preface law which governs the negotiation, adoption, interpretation and implementation of international conventions, and allows for the consideration of a number of principles which become important in the analysis of the convention provisions in the remaining chapters. The need to protect cultural heritage from the ravages of war gave rise to the first international law principles and rules applicable to cultural heritage, entwined with the development of international humanitarian law. This development led, in 1954, to the adoption of the first of UNESCO’s cultural heritage conventions, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Convention) and its First Protocol. Not only has this Convention, as the first of UNESCO’s cultural heritage conventions, provided a framework for subsequent conventional development, but is also, is some respects, both a codification of existing customary international law and the basis from which future customary international law might develop. The Convention, its First Protocol and 1999 Second Protocol adopted to revise the 1954 Convention, is considered in Chapter 3 in the context of the danger posed to the cultural heritage in the recent armed conflicts in the Balkans, Iraq, Kuwait, Afghanistan, and in the Israeli and Palestinian conflict. International law has long struggled to define and regulate the movement of cultural heritage; variously termed ‘illicit trafficking’, ‘repatriation’, ‘restitution’ or ‘return’ in an attempt to differentiate contexts. The illicit trade in cultural heritage is rampant despite the adoption, in 1970, of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 Convention). This regime was supplemented by the Convention on Stolen or Illegally Exported Cultural Objects adopted under the auspices of the International Institute for the Unification of Private Law in 1995 (UNIDROIT Convention). Arguably the most controversial and poorly implemented of the UNESCO cultural heritage conventions, it, and the UNIDROIT Convention, are considered, in Chapter 4, within the public and private law issues which dominate questions of inter-State moment of cultural heritage. Whilst the 1970 Convention might be controversial, the Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention), adopted in 1972, is regarded in many ways as a huge success. Given that the cultural heritage subject to this conventional regime is that found within each State, the convention differs dramatically to previous conventions in the principles and rules it establishes; and most importantly, structures the convention around the notion of a ‘world’ heritage. This new ‘co-operative’ structure is considered in Chapter 5. Each of the five UNESCO cultural heritage conventions has, in some way, been a reaction to an emerging international danger posed to some form of cultural heritage. The technological advancements that have allowed exploration of the oceans, particularly the deep seabed, lying beyond the jurisdiction of any State, have exposed the underwater cultural heritage to the dangers of unregulated excavation and dispersal. Adopted in 2001, the Convention on the Protection of the Underwater Cultural Heritage (Underwater Cultural Heritage Convention) not only addresses these issues, but also attempts to structure a regime which will

Preface xxi allow for the international protection of cultural heritage which lies beyond the territorial jurisdiction of any State. Its structure, provisions and principles have important implications for the notion of a common heritage of humanity to be protected by international co-operative regimes. This conventional regime is considered in Chapter 6. The evolving notion of cultural heritage and the role of international law in its protection culminated, in 2003, with the adoption of the Convention for the Safeguarding of Intangible Cultural Heritage (Intangible Cultural Heritage Convention). The structure of this new regime is considered in Chapter 7. Each of the five UNESCO cultural heritage conventions has addressed a specific aspect of the protection of cultural heritage. Indeed, the very subject matter and scope of each convention is unique and not designed specifically to interact. Yet the conventions do overlap, providing a complex web of conventional structures and provisions. This has also resulted in the development of conflict creating dichotomies (such as ‘market’ State versus ‘source’ State; and ‘cultural nationalism’ versus ‘cultural internationalism’) which has undermined the development of a principles foundation for an international law of cultural heritage. Whilst this process of adopting cultural heritage conventions over the past 50 years has created unnecessary dichotomies, it also evinces a move away from a purely norm based conventional regime designed to protect the simply physical manifestations of culture, to international conventional regimes which rely less on norms and international enforcement, and more on international co-operation underpinned by a more holistic notion of cultural heritage. This move, and the recognition that the protection of cultural heritage is the common concern of humankind, provides the basis for a principle of international co-operation, best implemented through the co-ordinating function of UNESCO. The concluding chapter sets out the importance of recognising and implementing a move ‘from five international conventions to an international law of co-operation’.2

Access to the Conventions Each of five UNESCO cultural heritage conventions, and the UNIDROIT convention, is a lengthy document, particularly the 1954 Hague Convention and the Underwater Cultural Heritage Convention which have lengthy Regulations and Annexes attached. As such, it is not possible to include the full text of the conventions in this work. Nevertheless, they are widely available and can be downloaded directly from the UNESCO and UNIDROIT websites (www.unesco. org and www. unidroit.org, respectively) together with further information on the conventions, such as State Parties and reservations made by States at the time of ratification, accession or acceptance.

2 This heading, of Chapter 8, was inspired by a similar heading used by Georges Abi-Saab in A.A. Yusuf, (ed.), Standard-setting in UNESCO: Normative Action in Education, Science and Culture, Leiden: Martinus Nijhoff and UNESCO Publishing, 2007, p. 396.

xxii Preface

Acknowledgements There are a number of key texts, dealing with specific aspects of the protection of cultural heritage which proved invaluable in the completion of this work and as such ought to be specifically acknowledged. Moreover, these works will provide, in some cases, a more detailed consideration of all the conventional provisions than was possible within the scope of this work. Lyndel Prott and Patrick O’Keefe’s two volume work Law and the Cultural Heritage, published in 1984 (volume 1) and 1989 (volume 3 – volume 2 was never produced), whilst now outdated in some respects, continues to provide a detailed framework for the issues to be considered in this area of international law. Their work since then has continued to shape the development of the law, and this work has benefitted greatly from their vast publication output, and considered analysis. Lyndel Prott’s article by article analysis of the UNIDROIT Convention (Commentary on the Unidroit Convention, 1997) and Patrick O’Keefe’s recently updated article by article analysis of the 1970 Convention (Commentary on the 1970 UNESCO Conventions, 2007) provide a concise and critical analysis of the international law relevant to these aspects of the protection of cultural heritage. Jiri Toman’s article by article analysis of the 1954 Hague Convention (The Protection of Cultural Property in the Event of Armed Conflict, 1996), continues to be a key work on the protection of cultural heritage during armed conflict. Kevin Chamberlain’s 2003 work, War and Cultural Heritage, further updates Toman’s article by article analysis by considering the 1999 Second Protocol. Supplementing and updating the topic is the detailed critical analysis of the 1954 Hague Convention by Roger O’Keefe (The Protection of Cultural Property in Armed Conflict, 2006). O’Keefe’s excellent work was used extensively in Chapter 3, and provides not only a detailed critical analysis of the 1954 Hague Convention, but is also the most comprehensive discussion of the historical development of the international law that provides protection of the cultural heritage during armed conflicts. The chapter on the World Heritage Convention benefitted greatly by the timely publication of the work entitled The 1972 World Heritage Convention, edited by Francesco Francioni. Given the extent to which this text informed Chapter 5, it is apt to specifically acknowledge a number of the contributors whose chapters were invaluable; Abdulqawi A. Yusuf; Ben Boer, Guido Carducci, Tulio Scovazzi, Gionata P. Buzinin, Luigi Condorelli, Ana Filipa Vrdoljak and Anne Lemaistre. Similarly, Janet Blake’s article by article analysis of the Intangible Cultural Heritage Convention, published in 2007, was of great assistance in the writing of Chapter 7. As is usual for a work of this nature, a great debt is owed to a great number of people who have assisted in many different ways, from other commentators whose ideas, research and writing has greatly influenced my ideas and this work, to those who have provided support in the writing of this work, which essentially goes back to my first interest in the underwater cultural heritage convention. I am gratefully indebted then to Michael Williams, Paul Fletcher-Tomenius, the late Nicholas Sinclair-Brown, John Gribble, Patrick O’Keefe, Sarah Dromgoole, Lyndel Prott, James Nafziger, Ulrike Koschtial and Neil Brodie.

1

Defining cultural heritage in international law

Introduction We are surrounded by ‘cultural heritage’. It grows exponentially every day, where any common place item might attain cultural significance if only touched by a celebrity, reflects a prevailing fashion or features in a defining event.1 Its ever expanding scope defies easy description or definition. The use of the term ‘cultural heritage’ itself, used to capture a vague, nebulous, and opaque idea or notion, is naturally subject to criticism from various quarters. Yet, as discussed in this chapter the term ‘cultural heritage’, as used in the title of this work, has been adopted as a conceptual net to capture this notion in international conventional law. The ascendancy of the notion of cultural heritage owes much to the law. The defining of terms such as ‘cultural heritage’, ‘cultural property’, ‘patrimony’ or ‘antiquities’ in a legal sense, so as to elevate certain goods to a higher realm of ‘protection’ has occurred in national statutes over the past 200 years. Much more recently, this has occurred at an international level through international State practice and the emergence of international conventions addressing ‘cultural heritage’.2

The notion of cultural heritage Much has been written about the difficulties in defining ‘cultural heritage’.3 It is a term liberally used but elusive of definition. The notions of ‘culture’ and ‘heritage’ are individually susceptible to various interpretations that are made no easier by

1 On the expanding notion of cultural heritage, see D. Lowenthal, The Heritage Crusade and the Spoils of History, Cambridge: Cambridge University Press, 1998. 2 See Appendix II for the various definitions contained in the UNESCO Cultural Heritage Conventions. 3 See, for example, J. Carman, Against Cultural Property: Archaeology, Heritage and Ownership, London: Duckworth, 2005, pp. 15–28; M. Evans, Principles of Environmental Heritage, St. Leonards: Prospect Media, pp. 15–38; J. Blake, ‘On Defining the Cultural Heritage’ (2000) 49 International and Comparative Law Quarterly 61; K. Last, ‘The Resolution of Cultural Property Disputes: Some Issues of Definition’ in W.W. Kowalski, Resolution of Cultural Property Disputes, The Hague: Kluwer International, 2004, pp. 54–64.

2

Defining cultural heritage in international law

their amalgamation. The terminological difficulties surrounding the use of the term ‘culture’ as a qualifier are extensive and, as an all-embracing term, applies to every aspect of contemporary society.4 In a sense culture is society: its values, beliefs and ideologies as expressed both in its language, practices and objects. While the term ‘heritage’ denotes that which is received from predecessors, it has been described as a nomadic and elastic term that attaches easily to anything considered cultural and does little to narrow the scope of the term ‘cultural heritage’.5 The concept itself is also constantly evolving. It is a product of contemporary society, to which new meaning and value is continuously being attributed to it for a range of different, overlapping and possibly conflicting purposes, be they economic, cultural, political or social.6 As such, attempts to describe what ‘cultural heritage’ is tend to use general terms understood intuitively as reflecting a culture which is inherited from a past. Prott and O’Keefe describe cultural heritage as consisting of ‘manifestations of human life which represent a particular view of life and witness the history and validity of that view’.7 Koboldt similarly described cultural heritage as ‘an expression or representation of the cultural identity of a society in a particular period’8 while Loulanski describes cultural heritage as ‘culture and landscape that are cared for by the community and passed on to the future to serve people’s need for a sense of identity and belonging’.9 And in an early UNESCO recommendation, cultural heritage has been described as ‘the product and witness of the different traditions and of the spiritual achievements of the past and thus is an essential element in the personality of the peoples of the world’.10 Cultural heritage therefore reflects value, and intuitively gives rise to notions of significance, reflected both in tangible and intangible manifestations of a culture. The manifestations of cultural heritage include almost anything man made or given value by man.11 Movable cultural heritage12 could include almost any object

4 J. Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage, Leicester: Institute of Art and Law, 2006, p. 22. 5 M. Hutter, ‘Economic Perspectives on Cultural Heritage: An Introduction’ in M. Hutter and I. Rizzo (eds), Economic Perspectives on Cultural Heritage, Basingstoke: MacMillan Press, 1997, p. 3. 6 T. Loulanski, ‘Revising the Concept of Cultural Heritage: The Argument for a Functional Approach’ (2006) 13 International Journal of Cultural Property 207, 210 and 212. 7 L. Prott and P.J. O’Keefe, ‘Cultural Heritage or Cultural Property’ (1992) 1 International Journal of Cultural Property 307. Prott later offered a similar description, being ‘those things and traditions which express the way of life and thought of a particular society, which are evidence of its intellectual and spiritual achievements’. L.V. Prott, ‘Problems of Private International Law for the Protection of the Cultural Heritage’ (1989) Recueil Des Cours 219, 224. 8 C. Koboldt, ‘Optimising the Use of Cultural Heritage’ in Hutter and Rizzo, op. cit., p. 68. 9 Loulanski, op. cit., p. 209. 10 Preamble to the 1968 UNESCO Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works. 11 Prott and O’Keefe (1992) op. cit., p. 308; Prott and O’Keefe (1984) op. cit., p. 153. 12 The classification of movable and immovable is particular to the civil law legal system, but used in a general sense here.

Defining cultural heritage in international law 3 of some cultural significance, from artistic masterpieces to traces of ancient daily utensils. As immovable places and sites, it might include archaeological sites which evidence fossils or early hominid culture,13 prehistoric caves,14 rock paintings,15 ancient cities,16 ancient buildings,17 gardens18 and monuments.19 Other immovable objects, which may be considered of cultural value, are natural sites that were, and may continue to be, of specific importance to a particular culture.20 This may be ritual and ceremonial sites, or natural objects such as trees, rocks or waterfalls. Yet cultural heritage may also be embodied in the intangible as well as the tangible; in both the music of a people and the instrument on which it is played; in a landscape and a people’s belief in that landscape; and in their oral traditions. All that we are is an expression of the culture that we inherited, and which we may, or may not, manipulate and pass on to future generations. It is this notion of inheritance, of receiving something from one generation and possibly passing it on to the next, which intuitively underpins the notion of cultural heritage. There are aspects of what we have inherited from our predecessors that we might not wish to manipulate, and which we may choose to pass on to future generations unaltered. The determination of what aspects of our cultural heritage we might wish to subject to such a scheme depends on the values we attribute to these aspects. Various schemes have therefore been based on definitions of ‘cultural heritage’ or ‘cultural property’ that, though not definitive of the terms, illustrates those aspects of the cultural heritage that may be selected for differential treatment. This differential treatment is ordinarily termed ‘protective’, a term susceptible to various interpretations depending on the values we recognise as attributable to the cultural heritage. The values attributable to cultural heritage Value underlies the notion of cultural heritage. Indeed, cultural heritage management is underpinned by the determination of value – or significance.21 Cultural heritage is value in the sense that it is neither the object nor the practice itself

13 For example, the Olduvai Gorge (Tanzania), Swartkrans (South Africa), Zhoukoudian (China) and Neumark Nord (Germany). 14 For example, the caves at Kromdraai (South Africa) from which early hominid remains have been found. 15 For example, the rock art at Lascaux (France), rock paintings of the Sierra de San Francisco (US) and the paintings found in the Serra da Capivara National Park (Brazil). 16 For example, the cities of Moenjodaro (Pakistan), Sana (Yemen Arab Republic) and Shibam (Peoples Democratic Republic of Yemen). 17 For example, Angkor (Cambodia), Borobudur (Indonesia), and Polonnaruma (Sri Lanka). 18 For example, The Royal Botanic Garden, Kew (UK), Garden Kingdom of Dessau-Wörlitz (Germany), and Botanical Garden of Padua (Italy). 19 For example, Abu Simbel (Egypt), Statute of Liberty (US), and obelisk of Aksum (Ethiopia). 20 For example, Kakadu and Uluru (Australia), Laponian Area (Sweden) and Tongariro National Park (New Zealand). 21 S.M. Titchan, On the Construction of Outstanding Universal Value, PhD thesis, Canberra: Australian National University, 1995, p. 97.

4

Defining cultural heritage in international law

which is of some importance to a people, but the importance itself. It is embodied in an object, a landscape, a dance or all three in combination. And it is this which legal regimes aim to protect. The way in which we conceive of, and give value to, cultural heritage determines the way in which we ‘protect’ that heritage. While it may appear axiomatic that cultural heritage should be ‘protected’, its scope, importance and the basis upon which ‘protection’ is sought, is a complex and emotive issue. As a body of contemporary material and practices, the process of attributing a value is a dynamic social process and, as such, is susceptible to continual alteration. It embodies a number of competing, evolving and relative values, which then dictate the form ‘protection’ will take. This requires some conception of the values that may be attributable to cultural heritage which make it worthy of ‘protection’. A range of values might exist, such as symbolic, informational, aesthetic, economic, historic, scientific, cultural, archaeological, ethnic, public, recreational, educational, technical, social or legal value.22 It is beyond the scope of this work to consider the concept of attributing value to the cultural heritage; nor is it possible to consider in detail all the various values that might be attributable to cultural heritage. There are, however, a number of attributable values, however generalised, which have played an important role in the construction and justification for the protective regimes that have emerged from UNESCO. Some brief consideration is required of these in order to explain the forms protection has ultimately taken in conventional international law. In any object or practice, three important, and often competing values, can be attributed: its expressive value, its archaeological and historic value and its economic value. The expressive value of cultural heritage Cultural heritage has an aesthetic value that expresses beauty in its form, colours, contrasts and context. It is this value that, in the form of tangible objects, appear to many of those who collect cultural heritage, and those who seek to view such heritage in museums and at heritage sites, monuments and natural landscapes.23 The intangible cultural heritage might also have an aesthetic value in the movement, form and colours of dancers and other performers. Cultural heritage may not only have aesthetic value, but each individual item of cultural heritage may embody a unique sum of inherent values.24 It may embody and express religious or moral attitudes which give the cultural heritage a divine sanctity. Non-religious objects may invoke feelings of nostalgia for people, events

22 Ibid. 23 For a collector’s perspective, see G. Ortiz, ‘Overview and Assessment after Fifty Years of Collecting in a Changing World’ in E. Robson, L. Treadwell and C. Gosden (eds), Who Owns Objects? The Ethics and Politics of Collecting Cultural Artefacts, Oxford: Oxbow Books, 2006, pp. 15–32. 24 A. Monden and G. Wils, ‘Art Objects as Common Heritage of Mankind’ (1986) XIX Revue Belge de Droit International 327, 328.

Defining cultural heritage in international law 5 and cultures and express values such as heroism, ingenuity and leadership. They are a link to the past, the only objects to survive from a past age. They reflect the common heritage of humankind and instil a sense of community and identity not only to individual cultures, but also to all humankind. They invoke emotions of pride, sorrow, pity, wonder and joy. The uniqueness of an item of cultural heritage lies not only in its physical attributes but also in the sum of emotions that only that particular item can engender. Preservation of archaeological and historical evidence ‘Cultural objects embody and preserve information’.25 In many cases, these physical objects are the only means by which we can reconstruct the past.26 From these we can not only learn about the past, but also from the past.27 Importantly, this heritage is finite and non-renewable. The extraction of this knowledge can be a time consuming and expensive process, and ordinarily must be conducted in situ. The learning process does not, however, end once the cultural heritage has been extracted from its archaeological context as continuing scholarly investigations may be necessary in relating its significance within a wider context and to reconsider associations with new discoveries. Of all the values embodied in the cultural heritage, it is the archaeological and historical evidence derived from the item that is mostly closely associated with the cultural heritage as an individual item. While a variety of cultural heritage items may give rise to similar expressive or economic values, at times only the one item of cultural heritage can uniquely reveal specific knowledge about the past.28 Economic value Economic considerations apply to cultural heritage. This includes the intrinsic value of a cultural heritage object and its attributed value as well as its part in the larger cultural heritage industry, particularly as a tourist resource. Many cultural heritage objects are constructed from materials that in themselves are highly valuable, most obviously gold, silver and precious stones. As long as the material has an economic value, the cultural heritage object will have an economic value. The economic value does only not reflect its material value, but also reflects an attributed value. Thus, the material value of the cultural heritage is usually only a fraction of the item’s market value. This attributed value may be derived from the rarity of the object, its aesthetic qualities as well as its historical or

25 J.H. Merryman, ‘The Public Interest in Cultural Property’ (1989) 77 California Law Review 339, 353; see also R.D. Abramson and S.B. Huttler, ‘The Legal Response to Illicit Movement of Cultural Heritage’ (1973) 5 Law and Policy in International Business 932, 936. 26 I. McBryde (ed.), Who Owns the Past?, Melbourne: Oxford University Press, 1985, p. 2. 27 ‘Those who cannot remember the past are condemned to repeat it’, Santayana, as quoted in Merryman (1989) op. cit., p. 354. 28 The Rosetta Stone, for example.

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Defining cultural heritage in international law

archaeological importance. This, in itself, is a cultural expression of the importance of the cultural heritage. In economic terms the cultural heritage is therefore quite simply an economic good or commodity. A commodity can be defined as goods that have an exchange value, the extent of which is dependent on the social context in which it circulates. It may be possible to raise particular goods to a level above that of a commodity when those goods are considered of such importance that they are ‘priceless’ and not susceptible to exchange. Few public goods are, however raised to such a level. As King clearly illustrates, public resources are often made available to private individuals and corporations for profit-making ventures.29 Such ventures contribute to the public good by producing wealth, and the extent of privatisation of public utilities in many countries illustrates the increasing utilisation of combinations of private and public uses. Fletcher-Tomenius and others point out that such a debate raises economic questions concerning the role of government intervention in the functioning of the market of commodities.30 While ‘it is quite evident that we cannot and, in fact, do not rely entirely on traditional market transactions to generate the volume and quality of cultural heritage object desired’,31 uncertainty remains about the extent of intervention in the market or its abolition.32 A number of economists have argued for a combination of private and public uses of cultural heritage. Hutter, for example, states: Cultural heritage regulation usually aims at removing objects from the commercial sphere, reserving them for the purpose of contemplation, reflection and enjoyment. That, however, is only one end of the possible spectrum of uses. The opposite end would be the unconscious private use of heritage objects, such as the use of a Greek temple as a stable, or the use of a Veronese as a bedroom decoration. In between there are many possible combinations of private and public uses ... .33 It has been argued that any attempt to ‘protect’ cultural heritage by its elevation to a legal position above that of a commodity, so as to eliminate the market, only results in that market going underground. The protection of cultural heritage in this way has led to a black market of a billion dollars.34 Thus, Bator argues that ‘total embargoes are not only impossible to enforce, but actually encourage the

29 J.L. King, ‘Cultural Property and National Sovereignty’ in P.M. Messenger (ed.), The Ethics of Collecting Cultural Property: Whose Culture? Whose Property?, Albuquerque: University of New Mexico Press, 1989, p. 199. 30 P. Fletcher-Tomenius, P.J. O’Keefe and M. Williams, ‘Salvor in Possession: Friend or Foe to Marine Archaeology?’ (2000) 9 International Journal of Cultural Property 263. 31 G.M. Mossetto, ‘Privatization Policies in Venice’ in Hutter and Rizzo, op. cit., p. 6. 32 D. Throsby, ‘Even Questions in the Economics of Cultural Heritage’, and C. Koboldt, op. cit., pp. 19–30 and 57–73. 33 Hutter, op. cit., p. 8. 34 J.A.R. Nafziger, ‘International Penal Aspects of Protecting Cultural Property’ (1985) 16 International Lawyer 835; J.A.R. Nafziger, ‘Comments on the Relevance of Law and Culture to Cultural Property Law’ (1983) 10 Syracuse Journal of International Law 325.

Defining cultural heritage in international law 7 illicit market rather than remove it’.35 Similarly, in 1970, a prominent museum director stated, in relation to the negotiations regarding the 1970 UNESCO Convention, that ‘[i]t is unrealistic to expect to stop all trade in archaeological objects and in fact a legal trade should help to stop the illicit trade’.36 As the poorer countries of the world are often source States, a thriving black-market has arisen in terrestrial cultural heritage out of economic necessity – ‘an overriding circumstance which explains, if it does not justify, the destruction of the past’.37 The international trade in art and antiquities is thriving, and record amounts are being paid for unique objects. Cultural heritage, whether held by public institutions or private individuals, are therefore unavoidably subject to economic valuation. These objects are not only economically valued in terms of the direct price paid for their acquisition, but also in terms of insurance premiums and evaluations, taxation values and security costs. In cases where States regard specific objects of cultural heritage as inappropriate for private ownership, such objects continue nevertheless to be subject to many of these economic considerations, with repercussions for State budgets. The cultural heritage is also a main basis for the ever-increasing tourist industry as monuments and museums are the subject of increasing tourist attention. As many of the world’s greatest monuments are in developing States, they are reliant on the tourist revenue as a major contribution to their economies. Any cultural heritage, irrespective of its origin, may be considered as being of value to the State, who directly benefits from its presence as a tourist attraction. The intangible cultural heritage is also subject to economic valuation in terms of tourist potential. Cultural events, including dances, performances, enactments, music and song, may be of considerable economic value as a tourist attraction as well as an important cultural event. This economic importance has led to the commodification of heritage. This process involves the re-interpretation and packaging of existing heritage resources as new heritage products to be used by contemporary society, and which in most cases produces direct economic benefits.38 In many cases cultural heritage is no longer a burden to national budgets but an important industry both in itself and to other industries, such as biomedicine, sustainable agriculture and international tourism. Although many would argue that cultural heritage should not be subject to market forces,39 the stark reality is that they are, as are allocation of budgetary resources, necessary for its support. To whom the cultural heritage is of value Whether any object or practice may embody an expressive value, an economic value and archaeological and historic evidence, or only some aspect of one or

35 36 37 38 39

Bator, op. cit., p. 300. K.E. Meyer, The Plundered Past, New York: Atheneum, 1974, p. 186. Ibid., p. 197. Loulanski, op. cit., p. 211. See for example generally Carmen (2005) op. cit.

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Defining cultural heritage in international law

more of these values, depends on who makes that value judgement. This might be made by an individual, a group or community, the ‘public’, the nation, or possibly humankind as a whole. Group or community The very term ‘culture’ suggests a homogenous group or community – a cultural unit. The culture is the unit, it reflects all those attributed values, which distinguishes one group from another; language, history, beliefs, practices and identity. The extent of the homogeneity of a group and its relationship to an object or practice is a difficult and complex issue, and gives rise to conflict where differing groups, often ill-defined and evolving, lay claim to some value in an object or practice. Where a group or community can wield political (and legal) power, it may more easily define the ambit of its value and where it might be embodied. Where political power is weak, usually for minority groups, particularly indigenous groups, the ability to define the scope of its heritage is greatly limited. This is particularly so where other groups lay claim to the same heritage but on different value grounds. Particularly problematic is the extent to which groups or communities are able to act on a national and international political plane as an identifiable entity. While group rights have yet to obtain clear normative status in international law, the concept of ‘cultural heritage rights’ as group rights has emerged from the human rights discourse.40 Recent proposals have recommended that the bundle of rights accorded to individuals ought to include cultural rights, and ought to be extended to groups.41 For example, in 1994 the Council of Europe suggested that the European Convention on Human Rights could be amended so as to include an article protecting cultural rights.42 Thus, groups may have the right to a cultural identity, which they are free to develop and protect. Within these rights lies the possibility of rights existing in relation to the physical manifestations of their culture. Such rights could include the right to the return of cultural heritage, or the right not to have the cultural heritage destroyed.43 The recognition of these rights to the cultural heritage as human rights provides for a stronger international protective regime than those that currently exist under international treaties. It may, for example, facilitate more effective remedies, as generally related violations

40 See E. Kamenka, ‘Human Rights and Peoples Rights’ and L.V. Prott, ‘Cultural Rights and Peoples’ Rights in International Law’ in J. Crawford (ed.), The Rights of Peoples, Oxford: Clarendon Press, Oxford, 1998; F. Francioni and M. Scheinin, Cultural Human Rights, Leiden: Martinus Nijhoff, 2008. 41 Brodie et al., for example, state that ‘the destruction of cultural heritage should be treated as a violation of human rights’, N. Brodie, J. Doole, J. and P. Watson, Stealing History: The Illicit Trade in Cultural Material, Cambridge: The McDonald Institute for Archaeological Research, 2000, p. 12. 42 Draft List of Cultural Rights (Strasbourg, August 1994). Council of Europe document CDCC Misc (94) 3. 43 Thus, destructive acts against the physical cultural heritage of a group, as occurred during the recent conflicts in the Balkans, would amount to a human rights abuse.

Defining cultural heritage in international law 9 may trigger erga omnes obligations, which means that any State can enforce these rights.44 Such State enforcement could possibly take place in international tribunals and could entail one State taking action against another State if the latter has violated a right relating to cultural heritage as a human right, within the latter State’s territory.45 The infringing State could not hide behind the exclusivity of autonomous sovereignty in order to evade culpability for the human rights abuse.46 The development of group rights in national and international law is an evolving notion, and though yet to gain normative recognition, is increasingly being recognised as an important component of sustainable development and environmental protection. Increasingly, the protection of groups’ cultural identity and cultural practices are recognised as allowing ‘participation in the positive benefits of a globalised economy, while resisting the bad impacts of globalised culture’.47 This recognition of the importance of a group’s cultural identity is seen as ‘an effective vehicle for development, consistent with twenty-first century socioeconomic development: globalisation, localisation, diversity, sustainability and responsibility’.48 The nation The world in which we live is increasingly subject to opposing forces. On the one hand, global communications, interdependent economies, increasing international regulations and proliferation of international non-governmental organisations have resulted in an increasingly interdependent world. On the other hand, recent years have witnessed increasing national tensions, rise in ethnic nationalism, fundamentalism and fragmentation of political units.49 In many recent cases, the emergence of new nation-States has been based on ethnic nationalism.50 What distinguishes each ethnic nation can be evidenced in their culture and their past, and in an age of increasing international interaction, these distinctions become important for each culture to maintain their own identity. This is particularly true for those nation-States that received independence at the end of the colonial era and those nations emerging from the break-up of the Eastern bloc.51 In many of these States, cultural heritage is used as a binding tool, to augment the development

44 For the original statement on ergo omnes obligations see Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) 1970 I.C.J. 4. 45 It should be noted that the resolution of international disputes in international tribunals is mostly conducted on the basis of State consent to the jurisdiction of the tribunal. 46 E.B. Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, Dobbs Ferry: Transnational Publishers, 1989, p. 10. 47 Loulanski, op. cit., p. 225. 48 Ibid. 49 A.D. Smith, Nations and Nationalism in a Global Era, Cambridge: Polity Press, 1995, p. 2. 50 This is particularly evident in the breakup of the Balkan State of Yugoslavia. 51 These include such new States as Georgia, Ukraine, Kazakhstan, Uzbekistan, Turkmenistan, Azerbaijan, Armenia, Krygystan and Tajikistan.

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Defining cultural heritage in international law

of nationalism. Even in polyethnic States, cultural heritage may be used to achieve a sense of nationalism amongst their citizens and may find expression for their contemporary nationalism from a combination of historical cultures. For example, the dedicatory inscription at the entrance of the Mexican National Museum of Anthropology includes the paragraph, ‘[i]n the presence of the vestiges of those cultures, contemporary Mexico pays tribute to indigenous Mexico, in whose expression it discerns the characteristics of its national identity’.52 Cultural heritage can play an important part in this nationalisation process. The importance of cultural heritage as a national symbol emerged in the nineteenth century ‘as part of the historical self-consciousness of a number of European States’.53 The cultural heritage thus became a symbol of national identity, from which a nation may derive cultural pride, a sense of community spirit and common history. It may also act as a form of inspiration for all to emulate the great achievements of the past. Use of cultural heritage in contemporary society, including its use in a way which might bolster nationalism, is encouraged, for example, in the 1972 UNESCO Recommendations Concerning the Protection at National Level, of the Cultural and Natural Heritage, that declares in the preamble that it is ‘appropriate to give cultural and natural heritage an active function in community life’. How this is done, and what heritage is used for this purpose, is not necessarily a product of history, but a product of the contemporary society for which it is to be used.54 As such, any cultural heritage within a State might be manipulated for this purpose. In a great many States, the remains of ancient civilisations are not those from which the current population emerged.55 This might lead to neglect or even destruction by the extant State, such as the destruction of the Bamiyan Buddhas by the Taliban regime in Afghanistan, or might result in the appropriation of that heritage for current national purposes. As long as the cultural heritage is found in the territory of the State, the State is effectively able to manipulate it. The ability of a State to claim an interest in the cultural heritage becomes further complicated when the heritage is moved, or capable of being moved, between States. The retention of cultural heritage within a State which is not necessarily the heritage of the current pollution of that State has been criticised as unnecessarily ‘hoarding’ heritage to which the State has no legitimate claim.56 When the cultural heritage has been moved, the ability of that heritage to acquire

52 See J. Mulvaney, ‘A Question of Values: Museums and Cultural Property’ in McBryde, op. cit., p. 86. 53 McBryde, op. cit., p. 3. 54 On the relationship between heritage and history, see generally Lowenthal, op. cit. On the construction of a national heritage, see generally D. Gilman, The Idea of Cultural Heritage, Leicester: Institute of Art and Law, 2006. 55 E.A. Posner, ‘The International Protection of Cultural Property: Some Skeptical Observations’ (2007) 8 Chicago Journal of International Law 213, 223. 56 J. Cuno, ‘Art Museums, Archaeology, and Antiquities in an Age of Sectarian Violence and Nationalist Politics’ in R.F. Rhodes (ed.), The Acquisition and Exhibition of Classical Antiquities, Notre Dame: University of Notre Dame Press, 2007, pp. 11–17.

Defining cultural heritage in international law 11 significance to a number of cultures or nations further complicates the matter. For example, although the Parthenon Marbles are unquestionably of Greek origin, and claimed by Greece as an important part of its cultural heritage, the Marbles could also be claimed to be part of the British cultural heritage.57 They were seized by a Scot, brought to England, and have been exhibited in England for over one and a half centuries. It helps provide revenue for the United Kingdom from tourists and may instil in the British a sense of pride in having the ability to amass and exhibit numerous items of cultural heritage. Thus, one item of cultural heritage may be of importance to more than one national culture. In the case of an archaeologically or historically important shipwreck, the items from the wreck will often have originated in different nations, and their use by international seafarers may result in a number of States claiming the wreck and all artefacts as their national cultural heritage.58 For example, the discovery of a Chinese trading vessel, sunk in 1414, off the coast of the Philippines in 1993 was hailed as a boost for Filipino national pride. President Fidel Ramos said the wreck and the artefacts recovered ‘prove we had a long and glorious history of economic interaction with our Asian neighbours. What could be a better source of inspiration for us Filipinos as we collectively prepare for the challenges of the twenty-first century?’.59 Humankind While recognising that objects may constitute the cultural heritage of a particular nation, many of these objects of national cultural heritage have also been regarded as evidence of the common history of all humankind. For example, as all humankind descends from a common ancestor, archaeological remains of their earliest tools and skeletal remains, and the knowledge derived from their examination, are not only important to the State in which they are found, but to all peoples.60 The history and development of our species is one history, and the culture of the world is greater than the sum of individual cultures. This sentiment is pervasive in academic writings on the cultural heritage.61

57 A great deal has been written about the Parthenon Marbles and the controversies surrounding its continued retention by the British Museum. For a discussion on the Parthenon Marbles, see Chapter 4. 58 For a discussion on the importance of ships in the constitution of nationality, see A.J. Firth, Managing Archaeology Underwater, Unpublished PhD Thesis, Southampton: University of Southampton, 1996, pp. 134–8. 59 A.L. Gee and A. Lopez, ‘Pride from the Deep: The Ocean Bed Delivers Proof of the Philippines Role in Asia’s Trading History’, CNN Asianow, 1996. Similarly, artefacts recovered from sunken Spanish galleons off the coast of Florida, have been described as ‘America’s heritage’. See E. Pendelton and R. Cox, ‘Trouble with Treasure’ in R.B. Cunningham, Archaeology, Relics, and the Law, Durham: Carolina Academic Press, 1999, p. 10. 60 In 1999 a number of sites from which important hominid remains have been found were added to the World Heritage List, including the sites of Sterkfontein, Swartkrans and Kromdraai in South Africa. 61 See for example, S. Williams, The International and National Protection of Movable Cultural Property. A Comparative Study, Dobbs Ferry, NY: Oceana Publications, 1978, p. 52.

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Defining cultural heritage in international law

This recognition of a universal value of cultural heritage is of some antiquity, but concretised during the Renaissance, and appears at this time in some of the earliest writings on the nascent international law. A view developed amongst the educated elite of Europe that the arts, literature and science comprised a ‘transnational common weal’, a respublica literaria that was pan-continental.62 This scholarly interest included the emerging interest in the old worlds of Greece and Egypt, and the development of antiquarianism and later the emerging discipline of archaeology. The military success of Napoleon in States such as Italy and Egypt, was followed by the systematic appropriation and plunder of its artworks. This was not, however, merely the spoils of the victor, but was inspired by the vision of a pan-European artistic and scholarly culture, with France at its centre and its custodian.63 In a critique of Napoleon’s policy of plundering the artistic work of Italy, Quatremère de Quincy declared the arts and science to belong ‘to all Europe and are no longer the exclusive property of any nation …’.64 This was judicially recognised as early as 1813 when a British Court of Vice Admiralty in Nova Scotia declared artwork aboard a vessel seized as prize to be ‘the property of mankind at large’.65 Such concerns were also evident in the effort to humanise war as developed in the Lieber Code of 1863, which contains a number of provisions relating to the protection of religious institutions, institutions of learning and museums of fine art.66 Concern for the protection of cultural heritage considered to be a common heritage was evident in the outcry following the plunder and torching of the Chinese imperial summer palace by the Anglo−French forces in the Second Opium War of 1860. The handbook of the law of war issued to French officers declared that ‘the destruction or carrying off of artistic collections, libraries and archives’ was contrary to international law as ‘[t]hese riches are the heritage of the whole of mankind, so it is in the interest of all that they escape the effects of war as much as possible…’.67 The development of the science of archaeology and the discovery of archaeological remains unconnected with any contemporary nation contributed to the growing recognition of the cultural heritage as the legacy of humankind. The attempted codification of the international law of war under the auspices of the League of Nations, recognised monuments and works of art, not as national heritage, but as the universal heritage that was in need of protection for the benefit of humankind as a whole.68 This notion was further clarified in a study undertaken

62 O’Keefe (2006) op. cit., p. 8. 63 Ibid., p. 15. 64 J.H. Merryman, ‘Cultural Property Internationalism’ (2005) 12 International Journal of Cultural Property 11, 15. 65 Case of the vessel Marquis de Somereules 1812 Stew, Adm. 482, 483 (N.S. 1813). See H.C. Roodt, Legal Aspects of the Protection of Cultural Heritage, Unpublished LLD Thesis, Bloemfontein: University of the Free State, 2000, p. 122. 66 Articles 35 and 36, Lieber Code. 67 O’Keefe (2006) op. cit., p. 21. 68 J. Toman, The Protection of Cultural Property in the Event of Armed Conflict, Aldershot: Dartmouth, 1996, p. 19.

Defining cultural heritage in international law 13 by the International Council of Museums in 1939, in which it was declared that ‘states that are rich artistically are only depositories of such works for the general benefit of all mankind’.69 Thus, a new perception of the cultural heritage ‘as a component of a common human culture, whatever their places of origin or present location, independent of property rights and national jurisdiction’ evolved. Today, this is reflected in the notion that ‘many cultural properties have artistic, scholarly and educational value which constitutes the cultural heritage of human society’.70 King regards cultural heritage as ‘the property of humankind as a whole since it represents the achievement of a part of all humankind that cannot be set apart from other achievements, in other geographical places’.71 Thus, it has been stated that ‘the art of ancient mankind is part of mankind’s cultural heritage, and does not belong exclusively to that particular spot where ancient cultures flourished’.72 This does not deny that the State in which the cultural heritage is situated does not have some claim to the cultural heritage, only that that claim is not exclusive. Thus, as Firth points out, ‘some people can claim greater affinity with some ancient material than others’.73 Within the existing structure of international law, it is therefore necessary to ensure that both the interests of the State in whose territory the objects are found and that of humankind are given effect. It is thus incumbent on the holding State to ensure that the interests of humankind are taken into consideration when decisions are made concerning items of cultural heritage, such as terms of access, dissemination of information as well as physical protection. Cultural heritage can play an important part in the political interplay between States. The promotion of understanding between the increasing number of independent States, and an appreciation of the differences between the varied national cultures, has been advanced as a reason for protecting the cultural heritage. The ‘feelings arouse[d] by the contemplation and study of works of the past do much to foster mutual understanding between nations’74 and ‘enriches the cultural life of all people and inspires mutual respect and appreciation…’.75 The return and restitution of cultural heritage may foster good will between States, but may also lend itself to more problematic political uses as a bargaining tool.76

69 Williams, op. cit., p. 53. 70 K.J. Warren. ‘Philosophical Perspective on the Ethics and Resolution of Cultural Property Issues’ in Messenger, op. cit., p. 5. 71 King, op. cit., p. 199. 72 Meyer, op. cit., p. 28. 73 Firth, op. cit., p. 158. 74 Preamble to the 1956 UNESCO Recommendations on International Standards Applicable to Archaeological Heritage. 75 Preamble to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and transfer of Ownership of Cultural Property. 76 For example, the agreement between the US and Mexico, in which the US agreed to impose import restrictions of pre-Columbian cultural heritage, was partly based on obtaining agreement from Mexico to co-operate in anti-drug trafficking operations by the US. Similarly the return of the

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Defining cultural heritage in international law

The meaning of protection The term ‘protection’ is emotive and subjective; referring as it does to the process of ensuring that value embodied in the cultural heritage is assured of recognition and treated accordingly. Physical protection Most of the values embodied in cultural heritage will be served by its physical preservation. This would appear to be axiomatic. However, some items of cultural heritage were never intended to be preserved, and the purpose for which they were originally devised was either for them to be consumed or be allowed to deteriorate. This is most commonly associated with items of cultural heritage in graves and tombs. In such a case, physical preservation may stand in stark contrast to the religious beliefs of a group or community within contemporary society, necessitating an evaluative comparison in values. A conflict naturally arises between those who wish to preserve the cultural heritage and those who belong and still practice the beliefs of the creating culture. Physical preservation also necessarily presumes the preservation of the whole, so that while an item of cultural heritage may still exist if broken into parts, the physical and cultural integrity of the whole will be destroyed. For example, while stelae pried from a Mayan temple would still constitute cultural heritage, the physical and contextual integrity of the temple would be destroyed.77 Similarly, the removal of the Parthenon Marbles by Lord Elgin extensively damaged the physical integrity of the Parthenon as a single entity. This may, however, be subject to any threat posed to the cultural heritage, so that division of the whole will preserve at least part of the cultural heritage when the whole is under threat from total destruction.78 There may also exist a threshold level of integrity, depending on the nature of the object or site, so that objects may be removed before that threshold is reached. The determination of this threshold is, however, complex and dependent on the values attributed to the cultural heritage. It may be that an object of cultural heritage will be more economically valuable if divided into parts, while the archaeological and historical information derived from the cultural heritage

Crown of St. Stephen to Hungary in 1977 gave the ruling socialist government an heir of legitimacy. See further Merryman (1989) op. cit., p. 351. 77 United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974). 78 In the case of cultural heritage in developing States, it has been argued that if the State is unable to protect the cultural heritage from physical destruction, either from the elements or from illicit excavations, then they should be allowed to be removed to another State. This argument was used to support the retention of the Parthenon Marbles in the UK as it was suggested that to return them to the Parthenon would put them under threat from the atmospheric pollution of Athens. The original removal of the Marbles was also justified as preserving them from physical destruction from the invading Turks. See further Merryman (1989) op. cit., p. 358.

Defining cultural heritage in international law 15 would thereby be diminished. Determination of such issues also calls into question the conceptualisation of what constitutes a single object of cultural heritage. Protection in situ Although the physical integrity of the cultural heritage can be ensured, its removal from its natural and archaeological context may undermine its value as a means of preserving archaeological and historical evidence. This decontextualisation results in cultural heritage devoid of provenance and meaning. What remains may be of economic and aesthetic worth, but cannot contribute to the sum of knowledge about our shared past. While preservation in situ undoubtedly has the possibility of preserving the archaeological value of the cultural heritage intact, the degree of decontextualisation that warrants this protective measure is debatable. So, for example, while some objects can be removed from their context while losing little of their archaeological value, others cannot. The extent to which the cultural heritage can be recontextualised will naturally be an important consideration. Thus, the need for protection in situ can only be evaluated on an individual basis and a determination made as to the threshold level of decontextualisation. The archaeological value of the physical cultural heritage is not, however, derived solely from its physical preservation, but rather from scientific investigation, which is maximised through in situ investigation. This process of in situ investigation ensures that the physical cultural heritage is considered within the natural and archaeological context in which it is found. Similarly, the historical value of the physical cultural heritage may be maximised through its continued placement within its physical historical context. Unscientific recovery and removal of the archaeological and historical cultural heritage from its natural or archaeological context may result in a loss of valuable information. In order to maximise the archaeological and historical value of the cultural heritage, it is important to ensure that not only is its continued physical integrity assured, but that its contextual integrity is similarly assured. Recognition of the archaeological and historical value of the cultural heritage may, however, conflict with other attributable values, particularly economic. While such conflicts may occur, they are not necessarily antithetical and there is no reason theoretically why these values cannot exist in relation to the same cultural heritage, with the proviso that, given the uniqueness of the information that may be obtained from the in situ investigation of cultural heritage, this value should be given preference to any others. Protection of visibility and accessibility The expressive value of the cultural heritage, in both an aesthetic sense and in its ability to invoke particular emotions, can only be realised if it is visible and accessible to a group, community, nation or to the public at large. Measures for ensuring this may fall within the term ‘protection’. Some States argue that cultural heritage, irrespective of its provenance, should be made visible to as many people as possible and accessible to leading scholars. Thus, it could be argued, ancient

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Greek or Egyptian artefacts should not necessarily be retained in their source States, but should be allowed to be exported to other States which can provide a greater degree of visibility to a larger audience, while allowing greater access to scholars. In cases where duplicates exist in a source State, these arguments should encourage the exchange of cultural heritage. As conflicting interests affect the visibility and accessibility of cultural heritage, Bator submits that the solution lies in variety.79 Thus no exclusive measure should prevail, and where possible, the measures should allow visibility and accessibility, either in the source State or importing State, as circumstances dictate. The delicate nature of some items of cultural heritage does not lend themselves to greater visibility and access.80 This might be so in some cases where, for example, an historic shipwreck or submerged archaeological site is better preserved in the marine environment, though this provides less visibility and access. Retention of cultural heritage Most States attempt to retain their cultural heritage, particularly developing States from South America, Africa and Asia, which are rich in cultural heritage items though poor in all other respects. Retentive schemes are often described as a means of ‘protecting’ the cultural heritage. A number of values may be realised by the retention of the cultural heritage within a State. For many developing States, particularly newly independent States, the retention of cultural heritage is underpinned by the ideal of nationalism. The cultural heritage is a manifestation of this nationalism, necessitating its presence within the nation territory. The extent to which this is true depends on each item of cultural heritage. For some items of cultural heritage, the culture that gave the item its cultural significance is not only still alive and flourishing, but still makes use of the cultural item for the religious or ceremonial purposes for which it was designed. For example, the Afo-A-Kom, a sculpture originating from the Kom peoples of the Cameroon, was stolen and exported to the US. In seeking its return, the First Secretary of the Cameroon Embassy in the US declared that ‘[i]t is beyond value. It is the heart of the Kom, what unifies the tribe, the spirit of the nation, what holds us together. It is not an object of art for sale and could not be’.81 Closely allied to the ideal of cultural nationalism, is the argument that the retention of cultural heritage promotes the general welfare of the nation. Thus, a nation can relate better than others to an item of cultural heritage produced by that culture;

79 Bator, op. cit., p. 300. 80 For example, in the case of the rock art in the caves of Lascaux France, the mere exposure to light threatens the integrity of the paintings. The caves are therefore no longer made accessible to the general public. 81 As quoted in J.H. Merryman, ‘The Retention of Cultural Property’ (1988) University of California Davis Law Review 477, 495.

Defining cultural heritage in international law 17 it can be enriched by the interaction with the cultural heritage and stimulate a feeling of national pride. In a world which devours heritage at an ever increasing rate, the economic benefits derived through tourism as well as through intellectual property rights, make the retention of cultural heritage more attractive than simply allowing the one-off sale of any object on the international art and antiquities market. While the latter may raise short term funds, it is unlikely to produce the income stream that retained cultural heritage will develop. It may be concluded that, subject to special circumstances, a State may be justified in retaining cultural heritage that legitimately constitutes its national cultural heritage. The retention of the entire cultural heritage in a particular State would not, however, necessarily be beneficial if it ignores a number of other values that could conceivably be of benefit to the source State, such as the improvement of international relations and co-operation through cultural exchanges. In the case of source States with a large number of potential cultural heritage items as yet undiscovered, the imposition of retentive laws may prove to be a disincentive for excavation as the items cannot be exported, and may be subject to expropriation. To this extent, the retentive laws may promote preservation in situ and lessen the risk of decontextulisation of the cultural heritage by its removal. It may, however, also impede the acquisition of knowledge through excavation. Those who control the cultural heritage, control the past in the sense that they are not only able to exhibit the heritage, but may also control its interpretation, scholarly study and place in a wider global context. Thus, retention policies may be utilised by States, or groups within States, to control what can be learnt about the past from the physical cultural heritage.82 Protection as co-operation Whilst giving effect to the expressive, economic, archaeological and historical values embedded in cultural heritage might be achieved through the physical and contextual protection of the cultural heritage within the State in which it is found, addressing the global threats to cultural heritage has necessitated the creation of international systems to assist States in their primary protective role. In this sense, protection is merely the structuring of such a co-operative system. This is particularly evident in the World Heritage Convention, which defines ‘international protection’ to mean ‘the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage’.83 A similar system was created for the protection of the intangible cultural heritage. The Intangible Cultural Heritage Convention, however, uses the terms

82 See B. Trigger, ‘The Past as Power: Anthropology and the North American Indian’ in McBryde, op. cit., pp. 11–40. 83 Article 7, World Heritage Convention.

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‘safeguarding’ rather than protection.84 Blake argues that ‘safeguarding’ is broader than ‘protection’ in that not only is the intangible cultural heritage protected from direct threats to it but also requires positive action from States to promote intangible cultural heritage.85 Safeguarding is defined so as to include protection as one of a number of measures that will create an environment conducive to the flourishing and production of intangible cultural heritage.86 Conclusion This discussion of the importance of the cultural heritage indicates some of the competing values embodied in the cultural heritage and some of the ‘protection’ strategies advocated to reflect these values. At times, these values may co-exist, while at others, they may stand in contrast to one another. When such a conflict in values occurs, a resolution can only be obtained by weighing the relative values against one another. In relation to the physical cultural heritage, the majority of inherent values will be achieved through the physical preservation of the artefact itself. It is therefore possible to broadly describe that which might be termed cultural heritage based on the values that may be attributed to it. When the realisation of these values from the physical cultural heritage is threatened, the need arises to structure and adopt a preservation regime to prevent such occurrences. However, in order to structure an adequate regime, it is necessary to determine what aspects of the cultural heritage are to be subject to such a regime. This is no easy task given the subjectivity in defining the term ‘cultural heritage’. Yet, a number of international conventions and recommendations have been agreed upon which purport to preserve cultural heritage, and it is therefore instructive to consider these. From the definitions of ‘cultural heritage’, the values attributed to the cultural heritage are given a legal value, elevating this selected material above other material. Ultimately the terms ‘protection’, and indeed ‘safeguarding’, are terms of art to be used to capture a broad concept which is given more specific content by the terms of the specific regime to which it relates. Protection of the underwater cultural heritage therefore means something different to that relating to the movement of cultural heritage. Indeed, the very same object, such as an illicitly excavated object from an historic shipwreck and illegally exported to be sold on the black market, may be subject to more than one ‘protection’ regime, each addressing differing components of a much broader international regime to ‘protect’ cultural heritage.

84 The term ‘safeguarding’ is used in the 1954 Hague Convention and in the 1962 Recommendation Concerning the Safeguarding of the Beauty and Character of Landscapes and Sites. 85 J. Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage, Leicester: Institute of Art and Law, 2006, p. 23. 86 Article 2(3), Intangible Cultural Heritage Convention.

Defining cultural heritage in international law 19

The legal value of cultural heritage Whilst a cultural object may evince a number of values, its inclusion in a protective legal regime adds a new value; a legal value. This value however, acts to accentuate other values and to privilege that heritage object, place or practice over others. This complex and circular process acts to reinforce and compound value, and at the same time to exclude and devaluate. The process of selecting cultural heritage for legal protection is complex, and has been considered in some detail by Carman.87 He argues that the process of protecting cultural heritage does not begin with attributing a value to the heritage and then, as a result of this value, granting it legal protection. Instead, he argues that the process begins with a socially induced predilection to seek to protect a certain class of material, and from this a legal regime is structured in such a way that value can be attributed to the material.88 The predilection to protection may be derived from any of the values that might be attributed to the cultural heritage. To give effect to a need for some tangible national cultural heritage, the value might pre-exist the object, and the process of protection thus begins with the search for objects which might be so valued. Through their legal protection, that national value is then realised. In the case of archaeological material the predilection arising from the recognition of the importance of the archaeological and historical information that is gained through appropriate scientific investigation, and possibly excavation. From its earliest beginnings, archaeological knowledge and discourse, particularly when used to judge the significance of physical objects or places, has contributed to the development of legislation protecting cultural heritage.89 By doing so, that knowledge is ‘incorporated into, privileged by and then contested within’ that legal framework.90 As such, the development of legal protection regimes has acted to then reinforce and bolster the science of archaeology as well as cultural heritage management in general. The ascendancy of the notion of cultural heritage (as well as the emergence of archaeology as an academic discipline) therefore owes much to the law. The difficulty in the process of selecting material for protection, given the socially induced values which the law seeks to protect, is somewhat arbitrary, as it is not the object, place or practice itself which is important. This has given rise to the legal process of classification, which provides a conceptual basis upon which a determination of any specific object, place or practice can be considered for inclusion of the legal regime. Such conceptual classifications include ‘cultural heritage’, ‘cultural property’, ‘patrimony’ or ‘antiquities’, and act as a mechanism through which particular objects, places or practices are, in a legal sense, elevated to a higher realm. It is, according to Carman, only then that the value is ascribed.

87 88 89 90

J. Carman, Valuing Ancient Things: Archaeology and Law, London: Leicester University Press, 1996. Ibid., p. 31. L. Smith, Archaeological Theory and the Politics of Cultural Heritage, Abingdon: Routledge, 2004, p. 3. Ibid., p. 125. Dealing, in particular, with the development of the US Antiquities Act 1906 and subsequent legislative development in the area of cultural heritage management.

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The way in which the cultural heritage is defined and protected then has a direct effect on the way in which it is managed, interpreted and understood. This then has a direct effect not only on the way in which those people associated with that heritage are perceived by others, but the way those people who self associate with that heritage perceive themselves and project that perception for others. This acts to reinforce and further extend the definitions contained in the legal instruments which act to reinforce original perceptions and predilections for protection. This process has worked to establish a great variety of national legal regimes designed to protect or safeguard the cultural heritage. It has increasingly taken place in the international plain to develop international legal norms that protect cultural heritage, thereby giving that which it covers a legal value which acts to accentuate all other values attributable to the heritage under that legal regime. How the international legal order has defined the cultural heritage is therefore a product of this process.

The definition of cultural heritage in International Conventions The adoption of the five UNESCO Conventions on cultural heritage have spanned almost fifty years, beginning with the adoption of the 1954 Hague Convention, and culminating in the fifth convention in 2003 on the Intangible Cultural Heritage. Each Convention contains its own definition of cultural heritage, though conceptually this has changed from ‘cultural property’ to ‘cultural heritage’ and then expanded to include the ‘intangible cultural heritage’. The definition of cultural heritage in each Convention is a reflection of the economic, social and political context in which it was negotiated, and sheds light on a range of issues relevant to cultural heritage at that time. Because of this ad hoc approach to the development of Conventions to address emerging issues, or to react to known difficulties to certain forms of cultural heritage, there is no definition of cultural heritage that captures the idea or notion for all purposes.91 Yet together, these definitions provide a conceptual basis for considering those values which underpin the notion of cultural heritage in its broadest sense. Much of what now constitutes the cultural heritage was traditionally dealt with in law as property.92 Within the international law of war, cultural property emerged as an object of protection, but more usually in the context of protecting civilian property or that of institutions fulfilling some public purpose.93 The

91 Prott and O’Keefe (1984) op. cit., p. 2. 92 Prott and O’Keefe (1992) op. cit., p. 309. Cultural property has been described as ‘a generic term referring to all types of artistic, archaeological, and ethnological material’. M. Blass, ‘Legal Restrictions on American Access to Foreign Cultural Property’ (1978) 46 Fordham Law Review 1177. 93 1907 Hague Regulations, articles 23(g); 27; 28 and 56. See Chapter 3.

Defining cultural heritage in international law 21 unprecedented destruction and plunder of Europe’s cultural heritage during the Second World War called for immediate action. Within the context of the plunder of Jewish property, particularly cultural property given the Nazi elite’s penchant for art and cultural objects, as well as the destruction of historic buildings in cities such as Bath, Cologne and Osaka, the notion of cultural heritage as property was reflected in the adoption of the 1954 Hague Convention. The Convention is a fulfilment of the obligations set out in UNESCO’s constitutional mandate to ‘assure the conservation and protection of the world’s inheritance of works of art and monuments of history and science’. As such, it was defined to include movable property such as ‘works of art, manuscripts, books and other objects of artistic, historical or archaeological interest’ as well as ‘scientific collections and important collections of books or archives or of reproductions of the property defined above’. The vast destruction of the architecture of Europe further resulted in the definition of cultural property including immovables such as ‘monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest’. Not all such property, however, was subject to the protective regime; only that considered to be ‘of great importance to the cultural heritage of every people’.94 Central to the Convention was the need to protect the physical integrity of these immovables, and movables, for which the notion of cultural heritage as property served well enough. The 1954 Hague Convention was the first truly international convention to attempt to protect the cultural heritage and so this definition of ‘cultural property’ was the first attempt to reach some international consensus on what should be protected. Because this Convention aimed at protection of ‘cultural property’ which could be damaged in times of war, the definition was naturally restricted to include only those objects which could conceivably be at risk during these times. It thus has a particular object focus, formulated as property. While appearing to be limited to cultural heritage in the sense of property, the convention is essentially protecting the values which are attributable to the specific properties under threat. These, however, are implicit, and only realised through the physical protection of the property. The destruction of cultural heritage during the Second World War; the growing awareness of the importance of cultural heritage in the lives of all peoples, particularly those under colonial rule, and the direct threat to existing heritage through urban development and globalisation, resulted in the formation of organisations dedicated to the protection of cultural heritage in its various forms. In particular the founding of the International Council on Monuments and Sites

94 Article 1, 1954 Hague Convention. See S. von Schorlemer, ‘Legal Changes in the regime of the Protection of Cultural Property in Armed Conflict’ (2004) 9 Art Antiquity and Law 43. While this definition of cultural property had been criticised as being out-of-date and narrow, it was not amended in the 1999 Protocol to the Convention. P.J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc. CLT-93/WS/12, 143.

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(ICOMOS) in 1965, as ‘an international assembly of architects and specialists of historic buildings’95 was also to play an important role in the conceptualisation of the cultural heritage, and in the development of a number of international protective regimes, including the 1972 World Heritage Convention and the 2001 Underwater Cultural Heritage Convention. In particular, given its particular remit, ICOMOS addressed the protection only of monuments and sites, and provided definitions of these. Importantly, monuments were described as ‘real property’, including buildings and furnishings within them, having archaeological, architectural, historic or ethnographic interest. ‘Sites’ defined as ‘a group of elements, whether natural or man-made, or combinations of the two, which it is in the public interest to conserve’. Notwithstanding the circularity in the determination of the latter, these definitions were to continue to play an important role in conceptualising the cultural heritage at an international level. Similarly, the establishment of the International Council of Museums (ICOM) necessitated a conscious effort to define the remit of ICOMOS in a way which ensured that it did not overlap with that of ICOM. As such, ICOMOS’ remit does not include ‘archaeological collections and other movables that are part of a museum collection’.96 Though conceptualised as property, the forms of property were also distinguished merely for the purposes of governance. Cultural property has also featured as the conceptual centre of a number of UNESCO Recommendations, including the 1968 UNESCO Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works. It is defined in fairly narrow terms that the aim of the recommendation is to protect cultural heritage, particularly immovable cultural heritage that may be affected by building operations. The designation ‘property’ is particularly evident in those conventions and recommendations whose aim it is to stem the flow of illicit cultural heritage. In the context of decolonisation, the emergence of newly independent States, and the concern for the return to those States of cultural heritage moved during period of occupation and colonisation, and to stem the continuing flow of cultural objects out of those States, the impetus for an international convention grew pace. At the heart of this concern was the commoditisation of cultural heritage. That is, the economic or market value of cultural objects were trumping any other value, and States, who might consider the national importance as greater than its market value, wished to create a protective regime that shielded such heritage from the trade in art and antiquities. Unfortunately, for a Convention which, in many ways eschewed the conceptualisation of cultural heritage as merely property, it uses the term cultural property to define the scope of its remit. It provides that cultural property means ‘property which, on religious or secular grounds, is specifically designated by each

95 1964 International Charter for the Conservation and Restoration of Monuments and Sites (Venice Charter). 96 Y. Ahmad, ‘The Scope and Definition of Heritage: From Tangible to Intangible’ (2006) 12 International Journal of Heritage Studies 292.

Defining cultural heritage in international law 23 State as being of importance for archaeology, prehistory, history, literature, art or science’.97 It then lists a number of categories of cultural ‘property’ which may be of importance to a State and which could be illicitly excavated and transferred to another State. This categorisation of the forms of cultural heritage has been the subject of much criticism, including for being overly broad and vague.98 This, however, is intentional in the sense that while there is an exhaustive list of categories, it is for each State to determine which objects it considers to be of importance and liable for inclusion in the extensive, but exhaustive, list. It is thus both broad in terms of what might fall within each category, but limited in the exhaustive nature of the categories. It thus only partly resembles the structure of the definition of cultural property in the 1954 Hague Convention, which is much more broadly defined, and exemplary in nature. The reason for this difference in definitions, according to O’Keefe, is the fact that the protection of cultural heritage from the scourge of war was a principle upon which all negotiating States at the 1954 Convention’s negotiations agreed to, and as such, the object of that central protective regime did not necessarily require exacting content. The 1970 Convention, however, required that a delicate balance be reached between importing and exporting State, and thus, a more exacting, and exhaustive definition was required so that the scope of the Convention could be accurately and definitively determined.99 Each convention has therefore adopted a definition to suit its particular aim.100 So too have UNESCO Recommendations. The 1976 UNESCO Recommendation Concerning the International Exchange of Cultural Property adopts a broad and rather vague definition of ‘cultural property’ as the aim is to ensure that as many objects as possible can be exchanged without hindrances. The 1978 Recommendation for the Protection of Movable Cultural Property also uses the term ‘cultural property’, by which it is meant ‘all movable objects which are the expression and testimony of human creation or of the evolution of nature and which are of archaeological, historical, artistic, scientific or technical value or interest’. Importantly, while this definition emphasises the property and tangible aspect of the objects that are to be subject to the protective recommendation, it gives recognition to the notion that it is essentially the value attributed to the objects that is to be protected. That is, through the physical protection of the object the ‘expression and testimony of human creation or of the evolution of nature’ is to be preserved. As is evident from above, the term ‘cultural property’ includes a wide range of cultural objects. The classification of these objects in law as ‘property’ has,

97 Article 1, 1970 Convention. 98 Williams, op. cit., p. 187. 99 P.J. O’Keefe, Commentary on the 1970 UNESCO Conventions, 2nd edn, Builth Wells: Institute of Art and Law, 2007, p. 35. 100 Prott and O’Keefe (1984) op. cit., p. 8.

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however, been criticised.101 Property, in the common law system, is a fundamental concept around which important politico-philosophical concepts have been developed. Property can be subdivided, in the common law system, as real or personal. Further divisions could include movable and immovable,102 tangible and intangible, public or private, or intellectual property. These divisions may not occur in all legal systems, and the extent to which an object of cultural importance falls within any particular category may be uncertain. The fundamental policy behind property law has been to protect the wide-ranging rights of the owner. In particular, the common law concept has a particular commercial perspective that entitles the owner of property to exclusive rights to alienate, to exploit, to exclude others and even to destroy it. The extensive rights that may be given to the owner may be such that other interests in the property are entirely ignored.103 However, in all legal systems, the rights of the individual have been restricted in favour of broader public interests. In terms of cultural property, the right of the owner could be restricted if the value of the cultural property to the public is perceived as being of greater importance. The owners’ rights could therefore be restricted by import or export controls, prohibition against destruction, zoning of cities to protect important sites and registration in registers. The term ‘property’ will therefore be associated with different rights in different jurisdictions, and the terminology could cause confusion as to the exact nature of the cultural object.104 As the term ‘property’ emphasises the commercial value of the cultural object, it may appear to be the primary value in the object whilst relegating the cultural value of the object to secondary importance. This approach is obviously not conducive to protection.105 ‘Heritage’ has therefore largely replaced ‘property’ as the conceptual framework for considering the protection of cultural objects, places and practices. The first time that the notion of ‘heritage’ was associated with cultural objects, was, surprisingly, also in the 1954 Hague Convention. Article 1 declares that the cultural property to be protected would include ‘movable or immovable property of great importance to the cultural heritage’. It is not used here as a collective term delimiting the property to be protected, but rather emphasises that the ‘property’ to be protected is that to which some cultural value is attached. The first use of the term ‘heritage’ in a definitional sense occurred in the 1956 UNESCO Recommendation on International Principles Applicable to Archaeological Excavations, which refers to the ‘archaeological heritage’. It is

101 Prott and O’Keefe (1992) op. cit., pp. 307–20; Blake (2000) op. cit., p. 61; Last, op. cit., pp. 54–64. 102 For a brief discussion on the problems related to the distinction between the civil law concepts of movables and immovables, see G. Reichelt, ‘International Protection of Cultural Property’ (1985) 1 Uniform Law Review 67. 103 For example, in some American states there are no controls on archaeological excavations on privately owned land as they are perceived as imposing on private property right. 104 Prott and O’Keefe (1984) op. cit., pp. 197–202. 105 Prott and O’Keefe (1992) op. cit., p. 311.

Defining cultural heritage in international law 25 unfortunate that later international agreements were not able to follow the terminology of this recommendation, one of the earliest of its kind, in using the term ‘heritage’ rather than ‘property’. Although this definition is restricted to ‘archaeological heritage’, within that context it is very broad, in that it includes any object recovered from an archaeological excavation, including an underwater excavation, which is considered by that State to be of importance. A similar approach was taken by the Council of Europe in the 1969 Convention on the Protection of the Archaeological Heritage, which defines those objects which shall be considered as the ‘archaeo-logical heritage’ as ‘all remains and objects, or any other traces of human existence, which bear witness to epochs and civilisations for which excavation or discoveries are the main source or one of the main sources of scientific information, shall be considered as archaeological objects’. This definition is framed in very broad terms, with no attempt to actually delimit the objects themselves, but rather concerns the relationship between the object and its scientific usefulness. The revised 1992 European Convention on the Protection of the Archaeological Heritage, restricts the broad 1969 definition to a certain extent by giving a number of examples of what these archaeological objects could include. The definition includes reference to examples of objects, such as ‘structures, groups of buildings, developed sites and movable objects’ while also including a broad significance criteria, such as ‘the preservation of which help to retrace the history of mankind and its relation with the natural environment’. The phrase ‘cultural heritage’ made its title debut in the 1972 World Heritage Convention.106 This definition is, however, limited in that the convention applies only to immovables, such as monuments, sites and cultural landscapes. Nevertheless, it does reflect a clear move away from the conceptualisation of cultural heritage as property, dominated by private property rights and economic in nature, to the recognition of a collective and public interest in the heritage.107 Importantly, the use of the term ‘heritage’ is given some content in article 4 of the Convention which provides that ‘it is the duty of each State Party to identify, protect, conserve and transmit the cultural and natural heritage to future generations’. This explicit use of the term heritage in the context of future generations reflects the time in which the convention was adopted. The late 1960s and early 1970s evinced a recognition that the protection of the environment, including the oceans, atmosphere and natural heritage of each State, was emerging as a global issue, requiring international co-operation. The use of the word heritage suggests ‘the need to preserve a historical asset for future generations and consequently the

106 See Chapter 5. 107 F. Francioni, The 1972 World Heritage Convention, Oxford: Oxford University Press, 2008, p. 3. See also J.L. Sax, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures, Ann Arbor: The University of Michigan Press, 1999.

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obligation of present generations to safeguard and protect such an asset’.108 It also transcends physical manifestations of cultural to include intangible elements, ‘as well as the relationship of humans to cultural objects’.109 Similarly, Titchan views the use of the term ‘heritage’ rather than ‘property’ as a shift ‘from the traditional focus of rights (including ownership rights and the concomitant over emphasis on commercial and monetary value, and the right to exploit, alienate and exclude) of a political sovereign over its national “property”, to a sense of duty to preserve and protect a “heritage” inherited from the past whose value transcends national boundaries’.110 Interestingly, though, while the World Heritage Convention uses the term heritage rather than property, the contents of both the Convention and the Operational Guidelines use the term ‘property’ on a number of occasions. However, the term is used to describe single places – an actual physical site, landscape or monument – collectively called a property.111 With the introduction of the term ‘cultural heritage’, the definition of the objects and places to be protected has become broader and more conceptual in nature than those of ‘cultural property’. Unfortunately, the inherent distinction between the terms ‘heritage’ and ‘property’ was not always fully grasped. The 1985 European Convention on Offences Relating to Cultural Property contained a definition of ‘cultural property’ but referred to the ‘cultural heritage’ in the preamble, suggesting that ‘cultural property’ is a subdivision of ‘cultural heritage’.112 Again, this reflects the central concern of this particular instrument, concerned as it is with introducing criminal and administrative measures to prevent offences against cultural property, punishing offenders and introducing co-operative measures for the restitution of cultural property. The conceptual difficulty in moving from property to heritage is reflected in the negotiations leading to the 1995 UNIDROIT Convention and the final terms used in the Convention. This Convention was intended to operate in tandem with the 1970 Convention, but address private property issues that could not be addressed in the 1970 Convention. It therefore deals with the cultural heritage primarily as property, and the actual definition used was intended to mirror almost exactly that of the 1970 Convention. By 1995, however, the term ‘heritage’ had gained widespread acceptance and was preferred to that of ‘property’ given the limitations inherent in that term. While the term ‘heritage’ was therefore proposed rather than ‘property’, given that it captured more than simply property values, its use in the context of a Convention which dealt primarily with property rights was challenged, considered to be overly ‘emotive language’.113 Rather than return to the use of the limiting term ‘property’,

108 109 110 111 112

A.A. Yusuf, ‘Definition of Cultural Heritage’ in Francioni, op. cit., p. 27. Ibid. Titchan, op. cit., p. 94. Ibid. The preamble includes the statement that ‘unity is founded to a considerable extent in the existence of a European cultural heritage’. 113 Prott (1997) op. cit., p. 17.

Defining cultural heritage in international law 27 a compromise was reached, which used the term ‘cultural object’. In most other respects, however, it follows the 1970 Convention, including using the exhaustive list of categories of ‘cultural objects’. The fourth UNESCO cultural heritage convention, on the underwater cultural heritage, was adopted almost thirty years after the third convention, the World Heritage Convention. Like its predecessors, this convention was adopted in light of a new threat to the cultural heritage. In this case it was the concern that technological advances in diving and exploration posed a direct threat to underwater cultural heritage, particularly historic shipwrecks. In a sense, the attempt to develop a convention to protect underwater cultural heritage was an attempt to ‘grow’ the existing international protection regime by extending it to international waters. Within this motivation, however, was the desire to gain scientific acceptance for the nascent discipline of maritime or underwater archaeology. Through the adoption of the Convention, and the resulting realisation of the legal value of the underwater cultural heritage, two advantages were secured for the archaeological community. First it gained control of the material through its legal ‘protection’ and secondly, through that, the scientific discipline gained legitimacy.114 The resulting definition of cultural heritage is conceptually no different to that which was applied in the 1970 Convention definition in the sense that it recognises the values attributed to the heritage, and which essentially require protection; being the cultural, historical or archaeological ‘character’ of the cultural heritage. Whilst the definition does contain a list of the object and sites in which such value might lie, these are exemplary (as was the case in the 1954 definition of cultural property) rather than exhaustive, as was the case in the 1970 Convention. This Convention, however, attempts to address issues peculiar to cultural heritage found underwater, or at least partly underwater at some time. The qualifying term ‘underwater’ therefore adds little conceptually to the notion of cultural heritage, but merely narrows the scope of the Convention to that found in a particular setting. At the same time, the definition does not, and cannot, determine what underwater cultural heritage is, but only what will be subject to the conventional regime. The first four of UNESCO’s conventions, and most of UNESCO’s recommendations, address the protection of the tangible manifestations of cultural heritage, and through that the cultural heritage value itself. Nevertheless, a concentration on the tangible, rather than the intangible, was increasingly recognised as misplaced in the sense that the form was being elevated rather than the cultural value itself. This was in fact creating conflict between giving effect to

114 J.D. Broadwater, ‘Nautical Archaeology: Coming of Age but Facing an Identity Crisis’ in G.P. Watts (ed.), Underwater Archaeology: The Challenge Before Us: The Proceedings of the Twelfth Conference in Underwater Archaeology, San Marino: Fathom Eight, 1981, pp. 218–24; J. Gifford, M. Redknapp and N. Fleming, ‘UNESCO International Survey of Underwater Cultural Heritage’ (1985) 16 World Archaeology 373.

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a protection of form as opposed to protection of the cultural substance inherent in the form. For example, world heritage sites such as Angkor were protected in the sense of preventing physical destruction, yet this protective mechanism was destroying the cultural connection between the Cambodian people and their heritage. By 1995 it was recognised that, ‘being based on architectural and archaeological heritage, these definitions focus on the physical side, completely ignoring the question of the function in contemporary society’.115 This concern extended not only to the tangible manifestation of cultural heritage, but also to that which was an intangible manifestation of a culture. These intangibles could take the form of patterns of behaviour, rituals, ceremonies, oral history, folklore, music, dance and knowledge of skills. It may also include the knowledge and information that may be attached to a material cultural object, such as how and when it was used, how it was made, for whom it was made, etc. The fifth UNESCO convention aimed to address the safeguarding of this intangible cultural heritage. The earlier UNESCO conventions essentially provided protection for the physical manifestation of cultural heritage. Unfortunately, the term cultural heritage has become associated with that tangible manifestation rather than the essential cultural values embodied therein, requiring that the word ‘intangible’ be used as a qualifier to the term cultural heritage. Adopted in the context of a process of unprecedented globalisation, and recognition of the importance of cultural diversity and its role in environmental protection and sustainable development, the definition is a product of its time, and addresses issues peculiar to it. While including ‘practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith’ the important component of the definition is that the intangible cultural heritage is that which is ‘transmitted from generation to generation’ and which ‘communities, groups and, in some cases, individuals recognise as part of their cultural heritage’.116 Perhaps the most problematic consequence of the use of the term intangible cultural heritage is the resulting distinction between the tangible and intangible. In many ways such a distinction is impossible, as most of the definitions of the tangible cultural heritage contained in the other UNESCO Conventions rely on an intangible component to give the tangible its cultural context. Conclusion: For the purposes of the present Convention UNESCO’s activities in the area of cultural heritage have produced a bewildering categorisation of cultural heritage; including cultural property, cultural heritage

115 Text emanating from the 1995 Helsinki Conference of Ministers responsible for the Cultural heritage, as quoted in Blake (2000) op. cit., p. 73. 116 Article 2(1), Intangible Cultural Heritage Convention.

Defining cultural heritage in international law 29 sites, historic cities, cultural landscapes, underwater cultural heritage, movable cultural heritage, natural sacred sites, documentary and digital heritage, cinematographic heritage, oral traditions, rites and beliefs, music and song, traditional medicine and traditional sports and games.117 The national and international trend in the protection of cultural heritage has evinced a move towards wider definitions of cultural heritage to reflect a much wider role of heritage in society. ‘From separate objects – architecture, archaeology and movables – heritage has expanded to landscapes, urban and rural areas, historic environment’ and the intangible cultural heritage.118 In all of UNESCO’s conventions, the definition of cultural property or cultural heritage, however qualified, is preceded by the phrase ‘for the purpose of this convention’, or at least something similarly worded. Reflecting on the first three conventions adopted by UNESCO, Blake concludes that: Where the difficulty lies is in the fact that these are all narrowly-targeted responses to specific problems which do not provide a single, generally agreed definition of the cultural heritage and fail to recognise the deeper implications of the concepts applied. International cultural heritage law has developed with an uncertainty at its centre over the exact nature of its subject-matter and based on a set of principles which are not always coherent.119 Given the ad hoc approach in the adoption of five conventions over almost fifty years, this would not be an altogether surprising result. Yet the principles may be capable of adaptation, reinterpreted and within the context of cross fertilisation between the conventional regimes, might prove to have more substance than Blake anticipates. In a sense, this work, in the process of setting out the essential conventional norms and structures in each of the five conventions, seeks to test the extent to which an international law of cultural heritage underpinned by a set of principles might have developed. Post script: A note on terminology As is evident, there is no definition of cultural heritage as such. Indeed the use of the term ‘cultural heritage’ is itself of recent use. While the term ‘cultural heritage’ is, for the reasons discussed above, preferable to the term ‘cultural property’, the latter is used in later chapters of the work. In particular, given the use of the term ‘cultural property’ in 1954 Hague Convention and the 1970 Convention, it will be used rather than the term ‘cultural heritage’ in the chapters that address these conventions. Nevertheless, it ought to be read broadly as synonymous with

117 Loulanski, op. cit., p. 209. 118 Ibid., p. 217. 119 Blake (2000) op. cit., p. 85.

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‘cultural heritage’ throughout this work unless the context indicates otherwise. Similarly, the term ‘cultural object’ is used in Chapter 4 when discussing the UNIDROIT Convention given its use of that term rather than ‘cultural property’ or ‘cultural heritage’.120 However, it is also used more generally throughout this work when referring to a single item, or object, of cultural value.

120 L.V. Prott, ‘The International Movement of Cultural Objects’ (2005) 12 International Journal of Cultural Property 225, 226.

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International legal framework

Introduction The purpose of establishing UNESCO was 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, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.1 To realise this purpose, UNESCO is tasked with maintaining, increasing and diffusing 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’.2 Five such conventions have been recommended, adopted and come into force over a period of forty-nine years. While each Convention has been a reaction to an emerging issue in relation to cultural heritage, and therefore not designed specifically to act together as a coherent whole, the principles upon which they have developed may provide grounds upon which an international law of cultural heritage might be constructed. The possibility that, acting together, these Conventions might provide a framework for an international law of cultural heritage arises not only because, in a very broad sense, they all concern cultural heritage, but also because they are all adopted in the same form: that is, they are all international Conventions whose function is regulated by existing international law. Before considering the content of each of the five Conventions (and the UNIDROIT Convention to the extent that it supplements the 1970 Convention), and drawing common principles from these conventions,3 it is necessary to

1 Article 1, UNESCO Constitution (emphasis added). 2 Article 2(c), UNESCO Constitution. 3 Discussed in Chapter 8.

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briefly consider the international law that regulates these conventions and imposes international law duties on those States that become a party to any of the conventions. This chapter briefly sets out the international legal principles which govern various aspects of conventions and provide a foundation upon which each of the UNESCO cultural heritage conventions can be discussed in Chapters 3–7.

The International Law of Conventions In 1969 the adoption of the Vienna Convention on the Law of Treaties codified, and to some degree developed, the international law governing the way in which treaties are made, brought into force, amended, terminated and interpreted.4 Generally the Vienna Convention is now regarded as reflecting customary international law and therefore binding on all States. It therefore governs all five UNESCO cultural heritage conventions, as well as the UNIDROIT convention. Importantly, this includes the principles that govern the process of interpretation of the conventions. Whether called a treaty, a convention or any other name,5 it is essentially ‘an international agreement concluded between States in written form and governed by international law’.6 Whilst this definition restricts the agreement to those entered into by States, it is possible for other entities in international law, such as international organisations, to enter into treaties with States or with one another. This is not the case, however, with the UNESCO cultural heritage conventions, which are multi-lateral conventions to which only States are party. UNESCO is not a party to any of these conventions. It is the organisation which has facilitated the negotiation and adoption of the conventions. As such the international convention which established UNESCO provides the framework within which these conventions are adopted, and provides for the setting out of the procedures for the negotiation and adoption of such conventions. The adoption of Conventions and consent by States to be bound The usual process of bringing a convention into being and into force requires a number of discrete steps.7 First the convention has to be adopted by the negotiating States. The process of how this will be achieved is usually governed by agreement of the negotiating States at the very beginning of negotiations, and will

4 5 6 7

A. Aust, Modern Treaty Law and Practice, 2nd edn, Cambridge: Cambridge University Press, 2007, p. 7. Other names include agreement, charter, covenant, pact, act, concordat, statute and protocol. Article 2(1)(a) Vienna Convention. For a detailed discussion of the process at UNESCO, see A.A. Yusuf, ‘UNESCO Practices and Procedures for the Elaboration of Standard-setting Instruments’ in A.A. Yusuf (ed.), Standard-setting in UNESCO: Normative Action in Education, Science and Culture, Leiden: Martinus Nijhoff and UNESCO Publishing, 2007, pp. 31–49.

International legal framework 33 usually provide for a vote, most often requiring a two-thirds majority of States present and voting.8 Secondly, the convention text has to be authenticated; that is, the text must set out accurately what the negotiating States agreed and adopted, usually by vote.9 The earlier 1954 Hague Convention was authenticated in a single copy which was deposited in the archives of UNESCO, as were both the First and Second Protocols. The remaining UNESCO cultural heritage conventions provide that two authentic copies bearing the signature of the President of the General Conference that adopted the convention, and of the Director-General of UNESCO, be deposited in the archives of UNESCO. Certified copies of the authoritative text are sent to all States Parties to the convention. The conventions do, however, provide that the text will be available in a number of languages, each of which is to be regarded as equally authoritative. In the earlier 1954 Hague Convention and 1970 Convention,10 the languages were limited to English, French, Russian and Spanish. The World Heritage Convention added Arabic to the list,11 and Chinese was added in 2001 in the Underwater Cultural Heritage Convention.12 As a point of comparison, UNIDROIT adopts a slightly different process than that of UNESCO, authenticating the convention in a single text drawn up only in English and French, both languages being equally authentic, and signed by the duly authorised plenipotentiaries. In practise, not all languages are actually used. The World Heritage Committee, for example, only uses the English and French texts, though it naturally may resort to any of the others if need be. The ability to use the differing languages as an aid to the interpretation of the convention can be important, but can also lead to confusion where certain concepts are not easily translated into the other languages.13 As such, while the terms of the convention are presumed to have the same meaning in each authentic text, the possibility of a conflict in meaning may arise. Where differences in the texts do arise, resort is made to article 33(4) of the Vienna Convention which provides that when a comparison of the authentic texts discloses a difference of meaning, ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted’. Once the convention is adopted and authenticated, States may begin the process of indicating their intention to be bound by the convention. In this respect, UNESCO procedures differ somewhat to that which usually is applied. The usual process of a State consenting to be bound by a convention requires a two-step process, the first step requiring the signature of a State and the second, the deposit of an instrument of ratification. By signing the convention, a State indicates that it

8 9 10 11 12

Article 9, Vienna Convention. Article 10, Vienna Convention. Article 29, 1954 Hague Convention, article 18, 1970 Convention. Article 30, World Heritage Convention. Article 35, Underwater Cultural Heritage Convention, article 39, Intangible Cultural Heritage Convention. 13 See for example the problem with the translation of the common law principle of ‘salvage’ in Chapter 6.

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regards the document as a correct recording of what the State considers to have been agreed, and that it intends to become a party to the convention in due course. As such, signature does not bind the signing State, though it requires the signing State not to do anything which would conflict with the core principles of the convention and defeat the very object and purpose of the convention.14 This procedure was adopted in the 1954 Hague Convention and First and Second Protocols.15 It applied, for example, to both the US and the UK who, at the time of the First and Second Gulf Wars, were signatories to the 1954 Hague Convention, but had not ratified the Convention.16 It was also adopted by UNIDROIT in the 1995 UNIDROIT Convention,17 which acts as a supplement to the 1970 Convention. The remaining UNESCO cultural heritage conventions have followed a different process. In particular, no provision is made for individual States to sign the Convention. While these conventions are adopted by member States at the General Conference, usually by vote, and signed by the Director-General of UNESCO and the President of the General Conference that adopted the convention, essentially on behalf of all States, the actual process of becoming bound by the conventions requires the deposit of an instrument of ratification, acceptance, approval or accession. This consent to be bound is the most significant positive act a State can take in relation to a convention. The differences between the forms by which a State consents to be bound by a convention are at times somewhat technical, but since the UNESCO conventions effectively provide for all forms of consent to be bound, and use them rather loosely, they will only be dealt with in outline here.18 Ratification usually is the form by which a State that has signed a convention subsequently agrees to be bound by the convention. This is the form of ratification used in the 1954 Hague Convention, given the provision in that convention for the signature of States. This is not necessarily the case, and in the 1999 Second Protocol to the 1954 Hague Convention, which also provides for signature of States, ratification is used interchangeably with the terms acceptance or approval.19 The remaining UNESCO cultural heritage conventions provide for ratification without having provided for signature, and in this sense, ratification is simply the instrument used to indicate consent to be bound, and used interchangeably with the terms acceptance or approval in relation to those States that are member States of UNESCO.20 This variation in terminology between ‘ratification’, ‘acceptance’ and ‘approval’ is

14 Article 18, Vienna Convention. See also M.N. Shaw, International Law, 6th edn, Cambridge: Cambridge University Press, 2008, p. 911. 15 Article 30, 1954 Hague Convention; article 6 First Protocol; article 40 Second Protocol. 16 The US ratified the 1954 Hague Convention on 13 March 2009. 17 Article 11, UNIDROIT Convention. 18 For more detail see Aust, op. cit., pp. 94–124. 19 Article 41, 1999 Second Protocol. 20 Article 26(1) Underwater Cultural Heritage Convention; article 32 Intangible Cultural heritage Convention.

International legal framework 35 therefore of little real significance.21 These do, however, differ to an instrument of accession. An instrument of accession is also used in slightly different senses in the UNESCO cultural heritage conventions. In the 1954 Hague Convention it is used for those States that were either not signatories to the convention, or were not member States of UNESCO, and therefore did not participate in the negotiation of the Convention.22 The latter States are not entitled to become a party to the convention unless invited to do so by the Executive Board of UNESCO. Because the remaining UNESCO cultural heritage conventions do not provide for signature by individual States, accession is used only in this latter sense; that is for those States that are not member States of UNESCO. In practice, while most States not member States of UNESCO will be invited to become a party to the Convention, this can become problematic in some cases, particularly where the duties embodied in the convention relate in some way to membership of UNESCO, which arises in the case of the World Heritage Convention, for example, where funds for the protection of World Heritage sites are derived not only from contributions of States Parties to the Convention, but through the regular payments that member States make to UNESCO as part of that membership. The adoption of the World Heritage Convention may therefore illustrate the relationship between membership of UNESCO and the decision to be bound by the World Heritage Convention. Four States acceded to the Convention, as they were not member States of UNESCO at the time. Three of these have subsequently become members States of UNESCO (Solomon Islands, Tajikistan and Uzbekistan), while the fourth, the Holy See, remains a non-member of UNESCO. On the other hand, a number of States that were members of UNESCO at the time of their ratification of the Convention, subsequently withdrew their membership from UNESCO for a time, and then rejoined UNESCO, including, for example, the United Kingdom and United States. Similarly, during the negotiations to adopt the 2001 Underwater Cultural Heritage Convention, the United Kingdom had by then rejoined UNESCO, while the United States was not a member State of UNESCO, and could only participate in negotiations at the invitation of UNESCO. Nevertheless, irrespective of what instrument was actually used, the importance lies simply in that the State has consented to be bound by the convention. Protocols As will be evident in Chapter 3, a number of issues relating to the protection of cultural heritage in occupied territory during armed conflict could not be agreed upon and threatened to halt the development and adoption of the 1954 Hague Convention. The solution adopted was to address those issues in a

21 Articles 11 and 14, Vienna Convention. See also Shaw, op. cit., p. 913. 22 Article 31, 1954 Hague Convention.

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separate convention. Given its very close relationship to the 1954 Hague Convention, however, States desired that this Convention be, in a sense, an add-on to the main Convention such that only if a State was a party to the main Convention could it become a party to the second Convention. Whilst a separate Convention, the title ‘Protocol’ is used instead of convention to highlight the close relationship between it and the primary Convention. As such, when, in 1999, the States Party to the 1954 Hague Convention chose to make changes to the regime, they did so through the adoption of a new convention, titled the Second Protocol. Importantly, these Protocols are conventions in their own right, though limited by their own content to States already party to the 1954 Hague Convention. Reservations The subject of reservations is particularly problematic in the law of international treaties, and the subject of ongoing academic debate. A reservation, as defined in the Vienna Convention, means: a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.23 Reservations play an important role in conventions, as they allow a State, which is generally satisfied with the terms of the convention, to exclude certain provisions that it cannot agree to be bound by.24 For example, in accepting the 1970 Convention, Australia entered a reservation to the article requiring it to regulate the conduct of antique dealers because this function was constitutionally reserved for the individual States of Australia and not the Federal Government. As such, for wholly internal constitutional reasons, such a reservation was necessary for Australia to become a party to the Convention. Such a reservation allows States to become a party to a convention without significantly altering the entire conventional regime. Reservations are therefore generally a necessary part of the system of conventional international law, and therefore generally not prohibited.25 Neither the 1954 Hague Convention nor the two Protocols prevented the making of reservations, though no substantive reservations were made. In some cases, however, the conventional regime is such that any divergence from the entire regime will undermine its very objective and purpose, and as such, States Parties might have agreed that no reservations will be permitted at all, or only with regard to specific articles. The Underwater Cultural Heritage Convention, for example, provides that no reservations may be made except in

23 Article 2(d), Vienna Convention. 24 On reservations see articles 19–23, Vienna Convention. 25 Article 19, Vienna Convention.

International legal framework 37 relation to the geographical scope of the Convention.26 Similarly, the UNIDROIT Convention provides that no reservations may be made except those specifically provided for in the convention itself. It is also the case that the convention may not disallow the making of reservations, yet specifically provide for a particular instance where a reservation may be made. In both the World Heritage Convention and the Intangible Cultural Heritage Convention, the making of reservations are not disallowed, but in the case of contributions to the fund, the conventions specifically declare that a State can make a reservation to not apply the article which requires States Parties to contribute to the Fund.27 This mechanism simply allows for a more efficient functioning of what is a complex article on the structure of the funding mechanism. A number of States took advantage of this provision and entered a reservation when depositing its instrument of consent. In a number of instances, States have made ‘declarations’ or ‘statements of understandings’ when depositing their instrument of consent. These are often used simply for a State to clarify its particular interpretation of a certain provision of the convention; usually in order to ensure that the provisions of the convention comply with the domestic law of the State, allowing for effective implementation of the convention.28 They can, however, be ‘disguised reservations’ in the sense that they are an attempt to exclude a particular legal effect for that State. Whether a reservation has been made will, therefore, be dependent on its effect rather than the label used by a State. Furthermore, where a reservation is made by a State, another contracting State may object to that reservation. This may occur where a State regards the effect of the reservations to fundamentally undermine the very object and purpose of the convention such that no agreement can be said to have been reached between those two States.29 While the making of reservations and statements of understanding have not been particularly problematic in most of the UNESCO cultural heritage conventions, the 1970 Convention is an exception. The 1970 Convention does not prohibit reservations. This was considered necessary in order to allow some leeway with regard to the implementation of the Convention, allowing States with divergent legal systems applicable to the import, export and trade in cultural heritage to become parties. A number of States took advantage of this and entered reservations to the Convention. The US, in particular, entered a reservation and six ‘understandings’ which amounted to statements as to how the US would interpret certain provisions of the Convention. Whether the understandings amounts to reservations has since been a controversial issue. It has been argued that as merely an interpretational understanding by the State making the interpretation, this is ‘less than a reservation’ and not necessarily binding if an international tribunal were to determine that such an

26 27 28 29

Article 30, Underwater Cultural Heritage Convention. Article 16(2) World Heritage Convention; article 26(2) Intangible Cultural Heritage Convention. Aust, op. cit., p. 127. Article 19(c), Vienna Convention.

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interpretation was not warranted by the conventional terms itself.30 As such, it will not have any effect on the duties and obligations of the US in relation to other States parties. On the other hand, if regarded as a reservation, as Mexico has done, it has significant implications for the obligations of the US. Mexico responded to the reservation and six understandings submitted by the US by submitting the following declaration: The Government of the United Mexican States has studied the text of the comments and reservations on the convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property made by the United States of America on 20 June 1983. It has reached the conclusion that these comments and reservations are not compatible with the purposes and aims of the Convention, and that their application would have the regrettable result of permitting the import into the United States of America of cultural property and its re-export to other countries, with the possibility that the cultural heritage of Mexico might be affected.31 The effect of this declaration is that Mexico does not consider that the US is, for the purposes of the Convention, a State Party, such that no reciprocal rights and duties arise between Mexico and the US.32 Entry into force While States may consent to be bound by a convention, they are only bound once that convention comes into force.33 The number of States Parties required in order to bring the convention into force is simply a matter to be determined by the States when adopting the convention, and as such is contained in each convention. What number of States Parties might be considered appropriate to bring the convention into force depends on the convention’s object and purpose and the structure of the international regime that is to be brought into existence. For example, the 1954 Hague Convention and its First Protocols attempt to introduce a regime that will protect cultural heritage in times of armed conflict, and will be an effective regime as long as the two belligerent States are a party to the convention. As such, its value does not depend on a large number of States being a party to the convention as it gives rise to duties which might effectively operate between two States. The Convention and Protocol therefore only required five States to have deposited their instruments of consent to be bound to bring the convention

30 P.J. O’Keefe, Commentary on the 1970 UNESCO Convention, 2nd edn, Builth Wells: Institute of Art and Law, 2007, p. 26. 31 See Mexican letter LA/Depositary/1985/40 of 3 March 1986 (UNESCO Doc). 32 O’Keefe (2007) op. cit., p. 25. 33 Article 24, Vienna Convention.

International legal framework 39 into force for those five States. Similarly, the 1970 Convention and UNIDROIT Convention only require an exporting and an importing State to be a party to the Convention for its regime to apply effectively, and require only three and five States respectively to deposit their instruments of consent to bring the respective conventions into force. Where an important change is being made to an existing international regime, more States Parties might be required to bring it into force. The 1999 Second Protocol to the 1954 Hague Convention, for example, made some important changes to the 1954 Hague Convention regime and to ensure that such a change was at least broadly acceptable before coming into force; the number of States required was increased to 20. Similarly, where the new conventional regime is underpinned by the introduction of a system of international co-operation, a larger number of States will be required in order to ensure that such a regime can function when it comes into force. For example, both the World Heritage Convention and the Underwater Cultural Heritage Convention required 20 States Parties to bring it into force, while the Intangible Cultural Heritage Convention required 30 States Parties to bring it into force. Usually the conventions provide for a time period between the deposit of a State’s instrument of consent and the coming into force of the convention, either when the total number of States have been reached that will bring it into force for those States, or thereafter for each State that becomes a party to the convention. This time period, usually three months, allows each State to ensure that it has implemented the necessary national measures to give effect to the obligations that will be imposed on it once the convention is in force for that State. Once the convention has entered into force, a State Party may withdraw from the convention by depositing an instrument which denounces the convention. All of UNESCO’s cultural heritage conventions specifically provide for denunciation, which usually takes effect three months after the deposit of that instrument.34 Revision of Conventions Almost all of the UNESCO cultural heritage conventions provide for the revision or amendment of the convention,35 the exception being the 1999 Second Protocol to the 1954 Hague Convention. The UNIDROIT Convention also does not provide for any revision or amendment. The absence of any provision for revision or amendment does not prevent the States Parties from amending or revising the convention, though the process is to be governed by article 40 of the Vienna Convention.

34 See for example article 36, Intangible Cultural Heritage Convention. 35 Article 39, 1954 Hague Convention; article 15, First Protocol; article 25, 1970 Convention; article 37, World Heritage Convention; article 31, Underwater Cultural Heritage Convention; article 38, Intangible Cultural Heritage Convention.

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Conventions are not, however, very easily revised or amended. It essentially requires that all States Parties agree to the revision; an unlikely occurrence. The difficulty is that a multiplicity of legal relations is created when an old and a new version of a convention are in existence. Some States will denounce the old version and adopt the new version, others will reject the new version and continue to be bound by the old version, and some will, effectively be bound by two different regimes between differing States Parties.36 While this might not be problematic between two States (the common convention being the applicable one), it has greater implications in situations where more than two States are involved. This, for example, applied in the case of the Coalition invasion of Iraq, where some States in the Coalition and Iraq were party to the 1954 Hague Convention, whilst the leading protagonists, the US and UK, were not, at that time, party to the Convention. Furthermore, some States who were party to the 1954 Hague Convention were not party to its First or Second Protocol, whilst others were. This creates a multiplicity of international legal relationships, particularly when more than one of the UNESCO cultural heritage conventions might apply to any given case. The reluctance of States to revise conventions is particularly evident in the case of the World Heritage Convention. While gaps in the definition of cultural heritage have been noted in the Convention, no amendment has ever been made to address this issue.37 To a large extent this is because State Parties appear to have reached an informal consensus that formal revision should be avoided since it will result in two versions of the convention existing, causing significant interpretational and implementation problems.38 The later Underwater Cultural Heritage Convention and Intangible Cultural Heritage Convention have only recently come into force and unlikely to require any amendment, while the 1954 Hague Convention has, to some extent, been amended through the adoption of the 1999 Second Protocol. While the UNIDROIT Convention might be said to have addressed some of the difficult and controversial issues arising in the 1970 Convention, it is this Convention, now almost 40 years old, which might be considered ripe for reconsideration. Unfortunately, this is an unlikely occurrence given the existing disagreement as to how the illicit trade in cultural heritage is to be addressed. Retrospectivity of Conventions Article 28 of the Vienna Convention provides that no convention will apply retrospectively. That is, a convention’s provision will not apply to any facts, acts or

36 Article 30, Vienna Convention. 37 An Italian proposal for the revision of the World Heritage Convention was considered in 1992, but following a report commissioned from relevant experts, never proceeded to a diplomatic level. F. Lenzirini, ‘Final Clauses’ in F. Francioni, The 1972 World Heritage Convention, Oxford: Oxford University Press, 2008, p. 352. 38 A.A. Yusuf, ‘Definition of Cultural Heritage’ in F. Francioni, op. cit., p. 31.

International legal framework 41 situations that arose prior to the convention coming into force for that State.39 This is a fundamental tenet of law. Nevertheless, while none of the UNESCO conventions apply retrospectively, this was a major point of debate during the negotiation of the 1970 Convention. Many developing States, emerging as independent States from the de-colonisation process of the 1950s and 1960s, were anxious for the return of the cultural heritage that had left their territories during colonial rule and were to be found in the public and private collections of the previous colonial masters. A number of States, for example, considered that the Convention would be of no use if not applied retrospectively since their entire cultural heritage had already left the State. Nevertheless, to apply the Convention retrospectively would have had profound implications for the rights of property holders in different States, giving rise to numerous constitutional and human rights issues that would have been insurmountable, and would have had the effect of simply eliminating a large number of States as potential parties to the Convention. The non-retrospective nature of the Convention therefore acts to distinguish clearly between two eras in relation to the illicit trafficking of cultural heritage: pre and post the entry into force of the 1970 Convention.

The national implementation of international Conventions International law and national law lie on different plains. As Aust observes, ‘[i]t should not be assumed that once a treaty has entered into force for a state it is then in force in that state’.40 In each case it will depend on the constitutional and legal systems in that State. Two broad approaches are evident in the approach taken by States; the monism and dualist approach. The monist approach, common to States with a civil law system, essentially provides only for one legal system such that a convention entered into by that State in accordance with its legal and constitutional procedures will be part of its national law.41 Dualist States effectively operate on two plains, such that while a State may be bound on the international plain, being a State Party to a convention, the provisions of that convention are not part of that State’s national law unless legislation giving effect to that convention and incorporating it into its national law is in force.42 If a convention is to accord rights to individuals, this becomes particularly important since the individual will not be able to enforce such rights if they have not been implemented nationally. Since the UNESCO cultural heritage conventions are, in the main, addressed to the State in relation to its cultural heritage, this is not

39 Shaw, op. cit., p. 926. 40 Original emphasis, Aust, op. cit., p. 178. 41 Monist States include France, Germany, The Netherlands, Poland, Russia and Switzerland. See Aust, op. cit., pp. 183–7. 42 Dualist States include most States with a common law legal system, including UK, US, Australia, New Zealand and South Africa. See Aust, op. cit., pp. 187–8.

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necessarily problematic. However, in cases such as the 1970 Convention and UNIDROIT Convention, where individuals’ rights in relation to property are addressed, the national implementation of the Conventions become important for enforcement by the individual. The extent to which any State requires the implementation of national legislation to give effect to a convention will depend on its pre-existing national laws. For example, in becoming a party to the 1970 Convention, the UK considered that its existing law was largely consistent with the convention and, as such, it was not necessary to implement new legislation other than in relation to the creation of certain new criminal offences.43 Importantly, on the international plain, it is no defence for a State to argue that it has not given effect to an obligation contained in an international convention to which it is a party, or that it cannot, because of its national constitutional provisions, give effect to that obligation. This is reflected in article 27 of the Vienna Convention, which quite simply declares that a ‘party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. In relation to cultural heritage, this has become somewhat problematic for a number of federal States since their constitutional provisions reserve cultural matters to their individual constitutive parts rather than the central government. This has been addressed in two of the UNESCO cultural heritage conventions in the form of a ‘federal clause’. Article 34 of the World Heritage Convention, which is substantially the same as article 35 of the Intangible Heritage Convention, provides that, for those States Parties to this Convention which have a federal or non-unitary constitutional system, the following will apply: (a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States; (b) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption. Depending on how a federal or non-unitary constitutional system is defined, a number of States will potentially qualify, including Australia, Germany, US, Canada, India and Russia.44 Whilst article 34(a) simply ensures that with regard

43 See K. Chamberlain, ‘UK Accession to the 1970 UNESCO Convention’ (2002) 7 Art, Antiquity and Law 231. 44 Other possible States include Argentina, Austria, Belgium, Brazil, Comoros, Ethiopia, Malaysia, Mexico, Nigeria, Federated States of Micronesia, Pakistan, Serbia and Montenegro, Switzerland, United Arab Emirates and Venezuela.

International legal framework 43 to matters that fall within the competency of the federal or central government, the obligations rest with that government in the same manner as it rests with unitary constitutional States, article 34(b) contemplates the lower levels of government implementing the conventional regimes. Nevertheless, on the international plain, it is the federal or central government that is bound to implement the convention, and thus has the obligation to pursue lower levels of government to adopt the conventional regime.45 This has occurred in relation to World Heritage sites, including the dispute between the Australian federal government and the government of the State of Tasmania concerning the Tasmanian Wilderness World Heritage site, and in Germany, between the federal Government and the city of Cologne administration concerning the World Heritage listed Cologne Cathedral.46 The remaining UNESCO cultural heritage conventions do not contain such a clause, reflecting the basic principle that irrespective of a State’s constitutional structure, being a party to the convention binds that State to implement the conventional norms. The 1954 Hague Convention and the 1970 Convention also contain what Aust describes as a type of ‘colonial clause’, which addresses the extent to which a convention to which a State has become a party extends to ‘all or any of the territories for whose international relations it is responsible’.47 This, now dated approach, its reflected in the 1954 Hague Convention, and in a somewhat more updated sense, in the 1970 Convention. In the 1954 Hague Convention and First Protocol this extension can be made if a declaration to that effect is lodged with the instrument of consent to be bound by the Convention, while the 1970 Convention assumes that the Convention will extend to such territories.48 Reflecting the process of decolonisation and the movement for self-determination of many territories, the Underwater Cultural Heritage Convention and the Intangible Cultural Heritage Convention now extend the right to accede to the Convention to those territories that are granted competencies in relation to cultural heritage by the constitutional structure of the State which has jurisdiction for that territory’s international relations. These Conventions provide that it shall be open to accession: by territories which enjoy full internal self-government recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly Resolution 1514 (XV), and which have competence

45 B. Boer, ‘The Federal Clause’ in Francioni op. cit., p. 356. That the federal government still has an obligation at an international level regardless of its particular constitutional system is best reflected in the chapeau to article 30 of the 2005 Cultural Diversity Convention which, while introducing the same two provisions as set out in article 34 of the World Heritage Convention, recognises that ‘international agreements are equally binding on Parties regardless of their constitutional systems’. 46 Boer, op. cit., pp. 358–60. 47 Article 35, 1954 Hague Convention; article 12, First Protocol. See Aust, op. cit., p. 203 and Shaw, op. cit., p. 926. 48 Article 22, 1970 Convention.

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International legal framework over the matters governed by this Convention, including the competence to enter into treaties in respect of such matters.49

Interpretation of Conventions As an exercise in multi-lateral negotiation and drafting, an international convention reflects a compromise text acceptable to negotiating States, and to which negotiating States have, in a sense, made some small contribution from their own legal system. It is both a composite text of the world’s legal systems and the lowest common denominator of these systems. It is also the product of a process which is, by its nature, imperfect. In order to reach consensus on an issue which, if not resolved, might derail further negotiation, conventional provisions are drafted in a way which allows for a number of interpretations.50 Whilst such ‘constructive ambiguity’ undermines the normative content of the resulting provisions, it is often a necessary evil in the drafting of international conventions.51 The process of convention negotiation and production also suffers, at times, from problems of mistranslation, the use of ‘expert reports’ which only reflect one interest group’s view, and poor drafting and checking that arises when conventions are hastily adopted at the end of long and protracted negotiations simply because the conference time-table has come to an end.52 It is then for each State to take each international convention and incorporate it into its own legal system in a manner which gives effect to the spirit of the convention as negotiated. Given the variety of legal systems in the world, this will inevitably result in different forms of national implementation, and differing interpretations of the conventional provisions. As a composite, negotiated agreement, it is therefore not surprising that in many instances, an international convention will set out broad principles rather than detailed provisions, leaving it to each State to give body to the principles. The interpretation of these conventional norms, however broad, is governed by the principles set out in the Vienna Convention. Essentially three approaches can be taken to the interpretation of a convention. The first approach is a text centred, objective, literal approach, focussing merely on the words actually used. The second approach looks beyond this objective approach when ambiguities in the objective approach arise, and seeks to ascertain the intention of the parties adopting the convention. The third approach is wider

49 Article 26(2)(b), Underwater Cultural Heritage Convention; article 33(2), Intangible Cultural Heritage Convention. General Assembly resolution 1514 (XV) is the Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960. 50 See, for example, the discussion on the drafting of the salvage article in the Underwater Cultural Heritage Convention (article 4) in Chapter 6. 51 P.M. Eisemann, ‘Introduction’ in Yusuf, op. cit., p. 26. 52 See futher Eisemann, op. cit., pp. 25–7.

International legal framework 45 than the previous two, interpreting the convention in light of the object and purpose of the convention. The provision of the Vienna Convention combines, to some extent, all three approaches.53 The primary rule of treaty interpretation is contained in article 31(1) of the Vienna Convention, which provides that: ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The exact way this is applied requires some degree of balance between the ordinary meaning of the words used and the object and purpose of the convention. Francioni, for example, in his interpretation of the World Heritage Convention, takes this one step further, arguing for an ‘evolutive’ approach to interpretation, which would allow for the interpretation of conventions in a way which ‘bends’ the textual meaning or the original intent of the parties to the necessity of reconciling the convention commitment with new requirements and legitimate objectives of the international community’.54 Such developments illustrate the degree to which leeway in article 31 is to be applied. Article 31(2) provides that a convention includes its text as well as its preamble and any annexes. As such, the preamble of the convention is an integral part of the conventional regime, and provides a context within which the interpretation of the convention’s provisions can be made. In many cases, including the UNESCO cultural heritage conventions, the key underlying principles are embodied in the preamble recitals. A number of the UNESCO cultural heritage conventions also contain annexes, including the 1954 Hague Convention, which takes the form of the Regulations for the Execution of the Convention, and the Underwater Cultural Heritage Convention, which has, as its Annex, the Rules concerning activities directed at underwater cultural heritage. Both these annexes form an integral part of the conventions, and are to be interpreted in accordance with the Vienna Convention’s provisions. Article 31(3) of the Vienna Convention provides that the interpretation of a convention may also take into account, together with the context: a b c

any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; any relevant rules of international law applicable in the relations between the parties.

An example of a subsequent agreement which might be used to aid a convention’s interpretation is that of the Operational Guidelines used for implementing the

53 Shaw, op. cit., p. 932. 54 Francioni, op. cit., pp. 6–7.

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World Heritage Convention.55 Since these Guidelines are updated regularly by the World Heritage Committee, and put into practice by the Committee in its dealings with the World Heritage, it might also fall within paragraph b, relating to the subsequent practice in the application of the convention. A subsequent agreement might also include the 1999 Second Protocol to the 1954 Hague Convention, allowing interpretation of the earlier convention in light of the content of the Protocol for those States party to the Protocol. Furthermore, article 32 of the Vienna Convention provides for supplementary means of interpretation. It provides that recourse may be had to: the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: a b

leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.

The preparatory material (travaux préparatoires) for many conventions may contain important material which might aid the interpretation of a convention. However, in many cases this material is incomplete, and may even be misleading, containing as it does the opinion of only one delegate as to the conventional provision in question.56 As such, it is to be used only as a supplementary means of interpretation to confirm the meaning arrived at by applying article 31 or where a problem arises in this regard. For example, the interpretation of article 11(4) of the World Heritage Convention suggests that the World Heritage Committee does not require the consent of the State in whose territory a cultural heritage site is situated to have that site added to the World Heritage List in Danger. However, the preparatory documents of the negotiations leading to the drafting and adoption of the Convention suggests otherwise. The 1972 Intergovernmental Meeting of Experts, responsible for drafting article 11, declared: The inclusion of a property in these lists requires the consent of the State Party concerned. Although a request by the latter will be necessary before a property may be included on the ‘List of World Heritage in Danger’, the Committee will be able to include a property in the World Heritage Lists without the State concerned having requested it, but on condition that it consents.57 Since the interpretation of article 11(4), according to the ordinary meaning of its terms, is not ambiguous, and since that interpretation is also consistent with the

55 G.P. Buzzini and L. Condorelli, ‘List of World Heritage in Danger and Deletion of a Property from the World Heritage List’ in Francioni, op. cit., p. 189. 56 O’Keefe (2007) op. cit., p. 28. 57 Report of the Intergovernmental Committee of Experts, submitted to the General Conference of UNESCO, June 1972, para. 29.

International legal framework 47 object and purpose of the Convention, and as such, does not lead to an unreasonable or manifestly absurd interpretation, the preparatory documents must be ignored. As a supplementary means of interpretation, this view of the Intergovernmental Meeting of Experts is irrelevant.58 While it might therefore appear that preparatory material cannot be used to contradict the meaning according to the ‘ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, this has been contested. It has been suggested that, where the ordinary meaning of a provision does not accord with the intention of the parties as reflected in the preparatory material, the primary duty is to interpret the provision in good faith so as to give effect to the parties’ intention, thus allowing the ordinary words to be overridden.59 While this remains as a possible basis for interpretation, the preparatory material will remain a most useful supplementary aid to interpretation when the convention’s provisions are ambiguous or obscure, or the result is manifestly absurd or unreasonable. These principles of interpretation are to be used primarily in judicial activity, where the aim is to determine the precise meaning of a provision. Courts cannot, however, alter the meaning of a provision, only interpret that provision for the purpose of resolving the dispute before it.60 Furthermore, having determined the meaning of an international conventional provision, national courts tend to interpret national legalisation so as to conform with conventional norms and to harmonise national laws with the aims and purposes of the Convention.61 Unfortunately, there is little in the way of court decisions that address the interpretation of the UNESCO cultural heritage conventions.62 Finally, while not specifically provided for in the Vienna Convention, in seeking to understand the provisions of a convention, reference might be made to the manner in which States have incorporated a convention’s provisions in their national legislation.63 States that take a monist approach to international law may not necessarily have national legislation on the subject, relying simply on the convention itself, while dualist States will only need to incorporate legislation when existing law is not compatible with the conventional provisions. Furthermore, the nature of the specific conventional regime will determine whether incorporating legislation is necessary. For example, while the rights of owners are affected by the 1970 Convention, some States, such as Australia, Canada and US have found it necessary to implement national legislation incorporating the Convention,64

58 59 60 61 62 63 64

Buzzini and Condorelli, op. cit., pp. 187–8. Aust, op. cit., p. 245. Shaw, op. cit., p. 934. L.V. Prott, Commentary on the Unidroit Convention, Leicester: Institute of Art and Law, 1997, p. 87. See discussion of a few national judicial decisions in O’Keefe (2007) op. cit., pp. 28–31. Ibid., p. 28. C. Forrest, ‘Strengthening the International Regime for the Prevention of the Illicit Trade in Cultural Heritage’ (2003) 4 Melbourne Journal of International Law 592.

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the UK has only done so in a limited respect.65 The World Heritage Convention, on the other hand, requires each State to give effect to the co-operative regime established by the Convention, which might be achieved without it being necessary to specifically address the Convention through the incorporation by way of national legislation. As such, few States have had to do so.66

The binding nature of Conventions Cited as the most fundamental principle of the law governing conventions, article 26 of the Vienna Convention requires that every convention ‘in force is binding upon the parties to it and must be performed by them in good faith’. The principle, often referred to by the Latin phrase pacta sunt servanda, means nothing more than that ‘agreements which are legally binding must be carried out’.67 The UNESCO cultural heritage conventions themselves provide no protection for cultural heritage – only States can protect cultural heritage.68 It is the States Parties to the conventions who provide the protection for cultural heritage through the implementation of the convention in good faith. The State in whose territory the cultural heritage is found The international legal order is underpinned by the sovereignty and equality of its component States. Any regime to protect cultural heritage requires the co-operation of the State in whose territory that heritage is found. Given that each State has absolute sovereignty over its territory, it has absolute sovereignty over the cultural heritage found on that territory, and practically and, as a fundamental principle of international law, that State may regulate that heritage in any way it wishes. However, by entering into an international convention, each State agrees that it will assume certain international obligations in regard to that cultural heritage and which will require it to act (or refrain from acting) in certain ways. The convention may also allow for other States or an international organisation, such as UNESCO, to interact or intervene with regard to that heritage. Any such action by another State Party or international organisation which is consistent with the conventional regime is not an interference with the sovereignty of the territorial States, but a reflection of that State’s sovereignty in entering into the conventional regime.69 In other words, ‘the sovereignty of states is compatible with the limitations of sovereignty which are freely (and hence in a sovereign capacity)

65 Chamberlain, op. cit., p. 231. 66 See for example the incorporation of the World Heritage Convention into South African national law by the World Heritage Convention Act, No. 49 of 1999. 67 Aust, op. cit., p. 179. 68 G. Carducci, ‘National and International Protection of the Cultural and Natural Heritage’ in Francioni, op. cit., p. 106. 69 Carducci, op. cit., p. 119.

International legal framework 49 entered into, namely binding commitments undertaken by means of international agreements’.70 For example, the World Heritage Convention is premised on the fundamental principle that the territorial State is at the centre of the international protection regime for cultural heritage. The Convention recognises that, both as a practical reality and as a consequence of the sovereignty of States, that it is for each State in whose territory the cultural heritage (as defined in that Convention) is found to provide the effective protection for that heritage.71 However, by entering into the World Heritage Convention, each State Party recognises that certain heritage situated in its territory is to be regarded as world heritage. This, however, is a reflection of the exercise of the sovereignty of the State Party, rather than anything which detracts from such sovereignty. This is also reflected in the fact that a State Party can withdraw, at any time, from a convention through the process of denunciation. The same principles apply in relation to the Intangible Cultural Heritage Convention, and to some extent to the Underwater Cultural Heritage Convention, in relation to the cultural heritage within the border of the States Parties. The nature of the obligations required to be adhered to differs quite dramatically between the different UNESCO cultural heritage conventions. The World Heritage Convention and Intangible Cultural Heritage Convention do not create many norms in the sense of imposing rules or norms of conduct. Rather these conventions are ‘constitutive’72 in the sense that they create international co-operative schemes and are concerned in the main with how the schemes are to function. Other States Parties to a Convention Multi-lateral conventions such as the UNESCO cultural heritage conventions, are essentially ‘law making’, or ‘standard setting’ conventions in the sense that they are intended to have affect generally and to introduce into international law new norms according to which States will act and interact. They provide for a new set of rules of conduct which are to be followed by States Parties, which, it is intended, will possibly include every State. While multi-lateral, most international conventions are synallagmatic in nature. That is, like a contract, it creates mutual obligations between each State that is a party to the convention and each other State Party. The obligations are therefore reciprocal inter partes – that is, between the contracting parties. It is as if every two States have entered into a bi-lateral agreement with each other. Within this regime, should one State breach its obligations under the convention, the State which has thereby suffered from the breach may seek a remedy against the other State. This is likely to arise in the 1954 Hague Convention to the extent that one

70 Buzzini and Condorelli, op. cit., p. 178 71 Article 4, World Heritage Convention. 72 Shaw, op. cit., p. 97.

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belligerent may, by damaging the cultural heritage of another belligerent, have contravened the ‘contract’ between it and the other ‘contracting’ party. Similarly, a breach of the 1970 Convention is likely to give rise to an issue between two States where one State will have suffered from the other State’s breach, for example, by allowing the importation of cultural heritage stolen from another State’s national museum. It is therefore usual in such cases for a State Party to require reciprocity in the sense that it will only consider it to have conventional obligations with respect to other States Parties to the convention. Canada, for example has required this in its legislation implementing the 1970 Convention.73 Australia, on the other hand, did not require reciprocity in this regard, and in its implementing legislation of the 1970 Convention it gives effect to certain conventional provisions in relation to cultural heritage from States not party to the 1970 Convention.74 A multi-lateral convention may, however, give rise to obligations erga omnes contractantes. That is, by entering into a multi-lateral convention each State assumes duties which are owned to each and every other State Party, such that a breach by that State of its obligations under that convention is a breach against the collective interests of all the States to the convention. As such, any other State Party can take action against the defaulting State irrespective of whether it has suffered direct damage from that breach. Whether the convention gives rise to obligations erga omnes contractantes will depend on the conventional regime itself. This may be the case where the international convention creates an international co-operative regime, such as the World Heritage Convention and Intangible Cultural Heritage Convention, where the obligation is for a State to protect the cultural heritage in its own territory. A breach of this obligation will not necessarily injure another State. However, it has been argued that the World Heritage Convention, for example, is characterised by obligations owned by each State Party with a cultural heritage site in its territory to the collective interest of all humankind, or the international community, as represented by the other States Parties to the Convention.75 As such, a breach of an obligation under the Convention will effectively injure all States Parties; the obligation being one erga omnes contractantes.76 Third States A fundamental principle of international law is that a convention does not create rights or obligations for a State that has not become a party to that convention – a third State – without its consent.77 As such, a third State may consent, in writing,

73 74 75 76 77

Cultural Property Export and Import Act 1975. Protection of Movable Cultural Heritage Act 1986 (Cth). Buzzini and Condorelli, op. cit., p. 178. See discussion in Chapter 5. The principle is often expressed by the Latin phrase: pacta tertiis nec prosunt nec nocent.

International legal framework 51 to an obligation imposed upon it, without becoming a party to the convention. If a convention imposes a right upon a third State, that State need not agree to this granting of the right for it to rest with that State, unless the State indicates that it does not want that right to so rest.78 The conferring of a right to a third State, may, in fact, confer a right to a group of third States, and there is therefore no reason why this might not then apply to all States – that is to every existing sovereign State – collectively often referred to as the ‘international community’ of States. The possibility that a third State can acquire rights or duties has arisen in the Intangible Cultural Heritage Convention. The first elements of the intangible cultural heritage to be added to the Intangible Cultural Heritage List created by the Convention, were those that had been listed on the List of Masterpieces of Oral and Intangible Heritage of Humanity created by UNESCO in 1997. However, a number of States whose intangible cultural heritage is amongst the 90 now listed on the Intangible Cultural Heritage List are not yet party to the Intangible Cultural Heritage Convention.79 This difficulty is somewhat alleviated by the fact that the obligations imposed on the States Parties are not onerous, and the benefits easily outweigh the obligations. As such, while a theoretical international law problem, it is unlikely to give rise to a dispute between a State Party and a non-State Party with an intangible cultural heritage element on the Intangible Cultural Heritage List. The international community There is no single legal entity called the international community, only a community of equal, sovereign States.80 These States may, often through conventions, arrange matters in a way in which their collective interest can be represented, such as through the United Nations or UNESCO, or through a conventional regime, such as that established in the World Heritage Convention. In its widest sense, then, the international community is the collective of all sovereign States. As such, reference in international conventions and other international instruments81 referring to the international community are considered to refer to the collective of all sovereign States. In a narrower sense, however, it may simply be the collective of those States that are party to a particular convention. In the case of a narrow reading of

78 Article 36(1), Vienna Convention. 79 This includes Bangladesh, Benin, Gambia, Iraq, Jamaica, Malawi, Malaysia, Russia, Tajikistan, Tonga, Uganda and Vanuatu. 80 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory Opinion, ICJ Rep 1971. See R. O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53 International and Comparative Law Quarterly 189, 191. 81 See for example article 48(1)(b) of the International Law Commission’s Article on Responsibilities of States for Internationally Wrongful Acts.

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‘international community’, the right and duties of States are limited to the reciprocal right and duties contained within the convention. Nevertheless, confusion arises when the term ‘international community’ is used in cultural heritage conventions, such as the World Heritage Convention and Intangible Cultural Heritage Convention and, in particular, whether this gives rise to erga omnes obligations – that is obligations by which all States Parties to the Convention are bound.82

Customary international law The existence of customary international law is a subject of great complexity and much academic debate. While it has been argued that it is of little value today, being too slow to accommodate changes in modern society and too difficult to establish, it has also been considered to be a dynamic process capable of universal application.83 Nevertheless, its application in the context of cultural heritage, particularly in relation to the protection of cultural heritage during armed conflicts, requires some consideration. In order to establish the existence of customary international law, two requirements must be met. First, there must be consistent State practice in support of the particular rule and, second, this State practice must be accompanied by a sense of legal obligation or legal entitlement to so act (opinion juris sive necessitates).84 Importantly, customary international law is binding on all States, except those which qualify as persistent objectors. It is therefore capable of universal application, provided that no State persistently objects to the existence of that customary law, which will then not bind that State, but bind all others. There are, however, some customary international rules to which objections cannot be made, such as the prohibition against genocide. These pre-emptory norms of general international law ( jus cogens), cannot be amended by way of a convention, but only by a subsequent norm of general international law having the same character.85 There are, however, no jus cogens rules directly relevant to the protection of cultural property, though the rules against genocide, for example, arose in the context of the plunder of Jewish owned culture heritage during the Second World War. The determination of the existence of a customary international law rule is particularly problematic and considerable debate continues as to what evidence is necessary to satisfy the two requirements. It essentially requires the examination of past practice by States, and any evidence which suggests the basis upon which States have so acted. Where there is consistent State practice amongst a significant number of States, who consider that such conduct is required by

82 83 84 85

Carducci, op. cit., p. 111. See Chapters 5 and 7. Shaw, op. cit., p. 73. Ibid., pp. 73–6. Article 53, Vienna Convention.

International legal framework 53 international law, customary international law can be established. In many cases, the existing customary international law is codified in the form of an international convention, essentially doing no more than reducing the customary international law to a written form. The Vienna Convention on the Law of Treaties was, to a large extent, a codification of the existing customary international law on conventions. Customary international law might also arise from a convention in the sense that non-party States begin to conduct their international affairs in a manner consistent with the provisions of the convention, in a belief that such conduct is required by the general custom developed by States.86 As such, customary international rules develop which, though exactly the same in content as those contained in a convention, come into existence as separate rules. Importantly, these customary international law rules are binding on all States, except persistent objectors, while the convention continues to apply only between States Parties. For all intents and purposes, however, all States, except persistent objectors, are bound by the same rules and it does not necessarily matter whether their source is the customary international law rule or the conventional rule. In the same way that obligations erga omnes contractantes may arise in a convention, such that any State Party can take action against the State which has breached its conventional obligation, even if it has not directly suffered from the breach of that norm, so obligations erga omes can also arise in relation to customary international law rules. As such, customary international law rules erga omnes are those obligations that are owed to all States. Whilst the protection of cultural heritage in some States has existed for some time, in some cases many hundreds of years, it is a relatively new concept on the international plain. As such only one of the UNESCO cultural heritage law conventions might possibly contain a codification of existing customary international law. That is the 1954 Hague Convention, which builds on the existing customary international law that was codified in, and developed from, the earlier 1899 and 1907 Hague Conventions.87 Given the importance of customary international law in relation to the protection of armed conflict it is discussed in some depth in Chapter 3. It is unlikely that any of the other UNESCO cultural heritage conventions can be said to reflect existing customary international law, and therefore does not warrant separate discussion. Given the increasing activities of States in relation to cultural heritage, it may be the case that customary international law is evolving and may come into existence at some time in the future. It is unfortunate that, in relation to the 1970 Convention, which is now almost forty years old, inconsistent State practice in this regard, and the continuing disagreement on how to address the illicit trade in cultural heritage, makes it unlikely that customary international law will have evolved.

86 Shaw, op. cit., p. 96. 87 See Chapter 3.

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Soft law Soft law is a term used to describe international instruments which do not create binding legal obligations on States.88 As standard-setting instruments, they are used to encourage States to take certain actions or to behave in certain ways, but do not require, as a matter of legal obligation, for States to so act. UNESCO has been particularly active in adopting soft law instruments on matters relating to cultural heritage, in the form of recommendations and declarations. Recommendations essentially contain principles and precepts ‘deemed to be the most appropriate basis for national legislation, administrative regulations, or policy measures on a specific matter’.89 They reflect some agreements between States as to the most appropriate common response to common problems, without dictating to States exactly how to implement the recommendation’s principles. The first Recommendation adopted at UNESCO addressed the protection of archaeological heritage; the 1956 Recommendation on International Principles Applicable to Archaeological Excavations. Since then a number of cultural heritage recommendations have been adopted, including: 1960 Recommendation Concerning the most Effective Means of Rendering Museums Accessible to Everyone 1962 Recommendation Concerning the Safeguarding of the Beauty and Character of Landscapes and Sites 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property 1968 Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works 1976 Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It 1976 Recommendation Concerning the International Exchange of Cultural Property 1978 Recommendation for the Protection of Movable Cultural Property 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore Similarly, declarations set out an agreed set of principles that informs a particular matter.90 While both recommendations and declarations are international instruments in their own right, they do not create any binding obligations on States, and lack any norm creating function.91 It is, however, theoretically possible for

88 Shaw, op. cit., pp. 117–18. 89 K. Matsuura, Foreword to Yusuf, op. cit., p. 11. 90 For example, the 2003 Declaration Concerning the International Destruction of Cultural Heritage, discussed in Chapter 3. 91 O’Keefe, for example, illustrates that neither the 1972 Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, nor the 1976 Recommendation on participation by the People at Large in Cultural life and their Contribution to it, can be regarded as reflecting norms of a customary international law character. O’Keefe (2004) op. cit., p. 202.

International legal framework 55 customary international law, through State practice and opio juris, to develop from a recommendation. This would require that the content of the recommendations be framed in a manner which is potentially norm creating and thus capable of imposing a duty on a State.92 Few of the UNESCO recommendations are framed in this way.93 It is more likely that a convention might later be negotiated and adopted in a manner which builds upon and reflects in some way an original recommendation. The 1970 Convention, for example, owes much to the 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property. Whilst not contributing directly to the international law governing the protection of cultural heritage, these recommendations play an important role in informing and structuring the overall international regime that provides a framework for the protection of cultural heritage.

92 O’Keefe suggests that article 7 of the Universal Declaration on Cultural Diversity may be norm creating in the use of the word ‘must’ when declaring that ‘heritage in all its forms must be preserved, enhanced and handed on to future generations as a record of human experience and aspirations, so as to foster creativity in all its diversity and to inspire genuine dialogue among cultures’. O’Keefe (2004) op. cit., p. 202. 93 Most of the recommendations, however, do not use terms such as ‘States must …’; or ‘States have a duty to …’; or the most common form, ‘States shall …’. Terms such as ‘States should …’, or ‘It is recommended that States …’, are used.

3

Cultural heritage and armed conflicts

Introduction War destroys. Indeed this is often its very aim. This includes the destruction, pillage and plunder of cultural heritage. Whether destroyed as a form of cultural genocide or to demoralise an opposing belligerent people, or to profit from the pillage and plunder of their wealth, cultural heritage has long been another victim of war. Yet the history of war also shows an attempt to humanise war – that is to set restrictions on how wars are fought in order to ensure that suffering and destruction are minimised. Slowly, this notion has extended to embrace the protection of cultural heritage, particularly that which might be considered the common heritage of all humankind. The unprecedented destruction wrought in the First World War, and the wholesale destruction, pillage, plunder and looting of cultural heritage during the Second World War, galvanised international action to create an international regime that would protect cultural heritage during armed conflicts – the 1954 Convention for the Protection of Cultural Heritage during Armed Conflicts. The adoption of the 1954 Convention has not prevented the destruction of cultural heritage in all armed conflicts. During the 1960s, the conflict in the Levant, particularly the Six Day war between Israel and the Arab States, sparked a legacy of damage and destruction to cultural heritage which continues today. In Cambodia in the early 1980s, the temples of Angkor were damaged and looted, including during the Vietnamese occupation.1 More recently, during the war between Eritrea and Ethiopia, the Ethiopian army toppled the 2,500 years old Stella of Matara, which, while situated in Eretria, was of significant cultural importance to the wider region.2 The protective power of the 1954 Convention in these conflicts, and others, was found wanting, and sparked reflection and debate.3

1 While looting occurred during the Vietnamese occupation, it increased after Vietnamese troops left in 1982. R. O’Keefe, The Protection of Cultural Property in Armed Conflict, New York: Cambridge University Press, 2006, p. 260. See also T. Winter, ‘Post-conflict Heritage and Tourism in Cambodia: The Burden of Angkor’ (2008) 14 International Journal of Heritage Studies 524, 527. 2 O’Keefe (2006) op. cit., p. 333. 3 For a discussion of some of these conflicts, see further J.A.E. Kastenberg, ‘The Legal Regime for Protecting Cultural Property During Armed Conflict’ (1997) 42 Air Force Law Review 277, 296

Cultural heritage and armed conflicts 57 It has, however, been the conflicts in the Balkans and the Gulf in the 1990s and early 2000s, which continue to simmer, that has drawn acute attention again to the plight of the world’s cultural heritage and provides a critical backdrop against which the Conventional provisions can be considered. The armed conflict in the Balkans The conflict in the Balkans in the early 1990s caused extensive damage and destruction to the region’s cultural heritage. Because the conflict centred on ethnic and religious grounds, damage or destruction of religious buildings was extensive. Many of these religious buildings, particularly old churches and mosques, were of cultural and historic importance as well as being important to the local population. Atrocities were perpetuated by all sides. Croatian troops, for example, vandalised Serb churches in Kinin and other Krajina towns while Serbs of Bosnia smashed gravestones in Muslim cemeteries.4 Many of these religious institutions were of historic importance, such as the Ferhat Pasha and Arnaudija mosques in Bosnia, destroyed in 1993.5 Other important cultural and historical buildings and structures were destroyed. Serbian troops, for example, deliberately targeted and shelled the Oriental Institute and National and University Library in Sarajevo, destroying thousands of volumes, including early Bosnian texts and atlases.6 Similarly, Serb troops vandalised a number of medieval sites in the Croatian city of Vukovar, including the eighteenth-century Eltz Castle; attacked a Roman complex in Split, and damaged the sixteenth-century fortress of Sara Gradiška.7 Important cultural sites in the city of Mostar in Herzegovina were damaged during extensive shelling in 1992 and 1993, including damage to the Bishop’s palace including its library which housed 50,000 volumes. The destruction wrought by the Croatian Defence Council culminated in the obliteration of the sixteenth-century Old Mostar Bridge.8

4 5 6 7 8

(concerning the conflicts in Cambodia, Lebanon, Iraq and Iran); D.A. Meyer, ‘The 1954 Hague Cultural Property Convention and its Emergence into Customary International Law’ (1993) 11 Boston University International Law Journal 349, 359 (concerning the conflicts in Cambodia, Middle East and Balkans); D. Cruickshank and D. Vincent, People, Places and Treasures Under Fire in Afghanistan, Iraq and Israel, London: BBC Books, 2003 (concerning the conflicts in Afghanistan, Iraq and Israel); H.E. Oyer III, ‘The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict – Is It Working? A Case Study: The Persian Gulf War Experience’ (1999) 23 Columbia VLA Journal of Law and the Arts 49, 57–65 (concerning the conflict in Kuwait and Iraq in 1991). P.G. Stone and J.F. Bajjaly, The Destruction of Cultural Heritage in Iraq, Woodbridge: Boydell Press, 2008, p. XI. O’Keefe (2006) op. cit., p. 239. Stone and Bajjaly, op. cit., p. XI. K.J. Delting, ‘Eternal Silence: The Destruction of Cultural Property in Yugoslavia’ (1992) 17 Maryland Journal of International Law 41, 66–8. O’Keefe (2006) op. cit., p. 239.

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One of the most unfortunate incidents to take place during the Balkans conflict was the shelling of the Old Town of Dubrovnik in Croatia. In 1979 the entire Old Town was declared a World Heritage site in accordance with the World Heritage Convention. In December 1991, as part of the Bosnian Serb army campaign in Croatia, hundreds of shells were fired on the Old Town, causing extensive damage. This damage occurred despite the World Heritage status of the Old Town and despite a number of buildings and the walls of the Old Town bearing the symbol indicating its protected status under the 1954 Hague Convention. This attack has been described as ‘one of the most pertinent breaches of the Law of War in recent times: not even during the Second World War was there displayed such arrogance with regard to cultural monuments’.9 In the aftermath of the conflict, prosecutions in the International Tribunal for the Former Yugoslavia (ICTY)10 have included, as war crimes, damage and destruction of cultural heritage.11 In many cases, the destruction had been of religious institutions, but many of these had also been of cultural and historic importance. For example, Croatian General Timohir Blaškic´ was convicted, amongst other crimes, for the destruction of religious institutions in a number of towns in the Lašva Valley in Bosnia-Herzegovina,12 while Biljana Plavšic´, the former Serbian President pleaded guilty to the offence of destruction of a number of cultural monuments and religious sites, including the Alidža mosque, in Foca.13 Prosecutions for the destruction of civilian and religious property, including many religious buildings of cultural and historical significance, continue.14 Prosecutions for damage to cultural heritage per se have also occurred. The military commander of the campaign aimed at Dubrovnik, Admiral Miodrag Jokic´,15 and his immediate superior,16 were subsequently found guilty of having committed a war crime by their actions against the Old Town of Dubrovnik. The prosecutions in the ICTY have done much to clarify the customary international law applicable to the protection of cultural heritage during armed conflicts.

9 I. Detter, The Law of War, 2nd edn, Cambridge: Cambridge University Press, 2000, p. 177. 10 UN Doc S/RES/827 (1993), established by the UN Security Council pursuant to UN Charter Chapter VII. 11 Article 3(d) of the Statute of the ICTY; UN Doc. S/25704, Annex, as Amended. 12 Prosecutor v. Blaškic´ IT-95-14-T, Judgment, 3 March 2000. See also Prosecutor v. Kordic´ and Cˇerkez IT-95-14/2-T, Judgment, 26 February 2001; Prosecutor v. Kordic´ and Cˇerkez IT-95-14/2-A, Appeal Judgment, 17 December 2004. 13 Prosecutor v. Plavšic´ IT-00-39&40/1, Judgment, 27 February 2003. See also Prosecutor v. Naletilic´ and Nartinovic´ IT-98-33-T, Judgment, 31 March 2003; Prosecutor v. Brdanin IT-99-36-PT, 9 December 2003. 14 L. Harris, ‘Serb leaser accused of systematic destruction of historic buildings’, The Art Newspaper, July–August 2008, p. 4. 15 Prosecutor v. Jokic´ IT-01-42/1-S, Judgment, 18 March 2004. 16 Prosecutor v. Struger IT-01-42-T, Judgment, 31 January 2005.

Cultural heritage and armed conflicts 59 Iraq and the Gulf Wars Of immense cultural significance, particularly in historic and archaeological terms, the cradle of civilisation17 in what includes today’s Iran, Iraq, Kuwait and Jordan, has suffered, and continues to suffer, the destructive consequences of armed conflict.18 In 1980 Iran and Iraq went to war. Iran, in particular, suffered considerable damage to its cultural heritage including, for example, the eleventh-century Jomeh Mosque, located in the Iranian city of Isfahan, which was damaged by Iraqi missiles.19 Iranian authorities highlighted the inadequacies of the 1954 Hague Convention, raising the issue a number of times in international fora, particularly UNESCO.20 However, by the end of the war, in 1988, little had been done to address the clear inadequacies of the Conventional regime. These inadequacies were tested again in the early 1990s with Iraq’s invasion of Kuwait. The invasion was quickly followed by the removal of significant quantities of material from Kuwaiti cultural institutions and their transfer to Iraqi museums. As a party to the 1954 Hague Convention and First Protocol, Iraq argued that the removal of the cultural heritage was in fulfilment of its conventional obligations to protect the cultural heritage of the occupied territory of Kuwait, which was best achieved by its removal to Iraq.21 With the commencement of the armed conflict involving the Coalition,22 led by the US and UK, in a bid to free Kuwait of Iraqi occupation, the cultural heritage in both Iraq and Kuwait came under threat. This threat was realised with cultural heritage being inadvertently and deliberately damaged or destroyed during operations, including damage to the ziggurat at Ur, the partial destruction of a tenth-century church in Mosul and damage caused by the shock waves of explosions to the arch of Ctesiphon.23 A much publicised example was the stationing of two Iraqi fighter aircraft adjacent to the Temple of Ur in the hope that the risk of damaging the temple would dissuade any attempt to destroy the aircraft.24 In itself this did not

17 Much of Iraq, for example, has been inhabited for over 7,000 years, and encompasses the birthplace of the city-States that made up Mesopotamia. The Sumerian culture that settled in the area between the Tigris and Euphrates rivers developed some of the earliest forms of writing and legal structures that now underpin most modern societies. On the importance of Iraq’s cultural heritage, see J. Hout, ‘The Importance of Iraq’s Cultural Heritage’ in Stone and Bajjaly, op. cit., p. 19. 18 For an overview of the protection of cultural heritage during the First and Second Gulf War, see P. Gerstenblith, ‘From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st Century’ (2006) 37 Georgetown Journal of International Law 245, 273–99. 19 Meyer, op. cit., pp. 376–7. 20 See generally O’Keefe (2006) op. cit., pp. 236–7. 21 Gerstenblith (2006) op. cit., p. 281. 22 The Coalition Forces, including amongst others, the US, UK, Australia, New Zealand, Spain, Italy and Poland, invaded Iraq on 19 March 2003 in an attempt to neutralise alleged weapons of mass destruction and to depose Saddam Hussein. 23 Gerstenblith (2006), op. cit., p. 280. 24 See M. Forsyth, ‘Casualties of War: The Destruction of Iraq’s Cultural Heritage as a Result of U.S. Action During and After the 1991 Gulf War’ (2004) 14 De Paul Journal of Art and Entertainment Law 73, 91.

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prevent Coalition forces from attacking the aircraft. The fact that there was no runway nor any service facilities in close proximity, meant that the aircraft were of little threat to Coalition forces, and as such the risk of damaging the Temple outweighed the military advantage to be gained from the destruction of the aircraft given their low threat level.25 The end of the conventional military operations did not, however, put an end to the damage and destruction of Iraq’s cultural heritage. In the wake of US-led victories, the museums in Amara, Kirkuk, Mosul, Kufa, Diwaniya, Suleimaniya, Dohuk and Basra were extensively looted and vandalised. As many as 4,000 artefacts, some dating to 3,500 BC, were stolen, much of which subsequently entered the world’s art and antiquities market.26 At the same time, through the efforts of UNESCO following a UN Security Council Resolution,27 thousands of objects taken from Kuwait museums to Iraq were returned in 1991.28 Some objects were not, however, returned and are reported to have appeared on the art and antiquities market.29 Following the imposition of sanctions at the end of the conflict, and the subsequent collapse of the economy, cultural heritage was perceived to be the only hard currency remaining and illicit excavations of archaeological sites soon began. Prior to this, Iraq had one of the strictest and most effective protection policies in the world, and little Iraqi heritage left the country, legally or illegally.30 Since this initial catastrophe, archaeological sites throughout Iraq have been targeted and subject to extensive destruction and illicit excavation, and the illicit trade increased dramatically.31 In March 2003, under the pretext of seeking weapons of mass destruction, and without UN Security Council approval, the US-led coalition entered Iraq.32 In light of the destruction, damage and looting of cultural heritage during the First Gulf War, concerns about the protection of Iraq’s cultural heritage, both in museums and in archaeological sites, were raised before the 2003 invasion.33 Unfortunately these concerns went largely unheeded and the US-led coalition was woefully underprepared to protect Iraq’s cultural heritage during the armed

25 O’Keefe (2006) op. cit., p. 327. 26 Oyer, op. cit., pp. 58 and 62–4. See also D. D’Arcy, ‘Iraq’s History is our History Too’, The Art Newspaper, November 2002; and P. Martin, E. Vulliamy and G. Hinsliff, ‘US Army was Told to Protect Looted Museum’, The Observer, 20 April 2003. 27 SC Res S/RES/686 (1991). 28 J. Toman, The Protection of Cultural Property in the Event of Armed Conflict, Aldershot: Dartmouth, 1996, p. 344. 29 Gerstenblith (2006), op. cit., p. 282. 30 K. Sykes, ‘The Trade in Iraqi Antiquities: A Conference held by the Institute of Art and law in association with Clyde and Co. London, 16th June 2003’ (2003) 7(3) Art Antiquity and Law 299, 304. 31 M. Bailey, ‘Archaeological sites the worst casualties’, The Art Newspaper, July–August 2003. 32 See generally M. Polk and A.M.H. Schuster, The Looting of the Iraq Museum, Baghdad: The Lost Legacy of Ancient Mesopotamia, New York: Harry N Abrams Inc, 2005. 33 C. Phuong, ‘The Protection of Iraqi Cultural Property’ (2004) 53 International and Comparative Law Quarterly 985, 986.

Cultural heritage and armed conflicts 61 conflict and, upon becoming an occupying power, of protecting Iraq’s cultural institutions and archaeological sites, and the prevention of the illicit excavation, sale and export of Iraqi cultural heritage.34 The difficulties in balancing the interests of the military in an armed conflict with the protection of cultural heritage in such an archaeologically rich State such as Iraq are immense, and raised numerous issues. Some precautions were taken in that certain targets were avoided because the risk of damage to cultural heritage outweighed the military advantage to be gained from attack.35 Nevertheless, during the armed conflict cultural heritage was damaged for numerous reasons. It has been intentionally targeted if being utilised by the military, particularly to ‘shield’ military hardware or personnel, and inadvertently damaged as ‘collateral damage’, often arising from ignorance as to the cultural value of the property. For example, the Iraqi military stationed military vehicles between the museum complex and the Arch of Ctesiphon on the third-century BC archaeological site despite the museum complex being marked by the blue shield designating protection under the 1954 Hague Convention.36 Perhaps the most notorious incident concerns the looting of the Baghdad Museum.37,38 Exactly what occurred at the Baghdad Museum between 9th and 16th April 2003 has not been clearly ascertained. Amidst this confusion, however, have risen a number of allegations against both Iraq and Coalition forces, particularly the US, of action (or inaction) that contributed to the damage, destruction and looting of Iraqi cultural heritage. The most prominent accusation has been that on entering Baghdad, Coalition forces failed to provide any protection to the city’s cultural heritage institutions, as a result of which the National Museum and Library in Baghdad were extensively damaged and looted.39 This, it is claimed, was a surprising omission given the looting of museums in 1991 and the warning from its own civilian advisors that the museum would be at risk of sacking and looting.40 The National Museum is also very close to a television station and adjacent to the presidential palace, both of which were targeted by coalition forces during the First Gulf War and were heavily bombed. The US, however, has

34 See generally L. Rothfield, Antiquities Under Siege: Cultural Heritage Protection after the Iraq War, Lanham: AltaMira Press, 2008, pp. 1–48. 35 O’Keefe (2006) op. cit., pp. 327 and 330. 36 ‘Iraq Accused of Sheltering Behind Antiquities’, The Age, 2 April 2003. 37 See generally M. Polk and A.M.H. Schuster, The Looting of the Iraq Museum, Baghdad: The Lost Legacy of Ancient Mesopotamia, New York: Harry N. Abrams Inc, 2005. See also M. Bailey, ‘International outrage as great museum is sacked’, The Art Newspaper, May 2003. 38 In September 2003, losses from the National Museum in Bagdad amounted to 13,000 objects, which included 4,795 cylinder seals; 4,997 smaller objects such as amulets and necklaces, and 545 pieces of pottery and bronze weapons. M. Bailey, ‘Seized: over 600 objects looted from Iraq’, The Art Newspaper, September 2003, 1. 39 M. Bailey, ‘International outrage as great museum is sacked’, The Art Newspaper, May 2003. 40 D. D’Arcy, ‘Iraq’s history is our history too’, The Art Newspaper, November 2002, 1 and P. Martin, E. Vulliamy and G. Hinsliff,‘US army was told to protect looted museum’, The Observer, Sunday 20 April, 2003.

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claimed that prior to the looting, the museum grounds were being used as a military position by Iraqi forces, which not only prevented the stationing of Coalition troops at the museum to protect it from looters, but made the Museum itself a legitimate military target.41 This raised the question not only regarding the potential legality of Iraq’s use of the museum, but also of the US coalition’s obligations to have prevented the looting of the museum, and the protection of Iraq’s cultural heritage during the conflict itself. Whilst belligerent forces are under international law obligations to protect cultural heritage during the armed conflict itself, once a belligerent power becomes an occupying power, further obligations are imposed.42 Once Iraq had been placed under occupation, the duties rising from being an occupying power were superimposed on those that continued to apply during the ongoing armed conflict. On 8 May 2003, the Coalition Provisional Authority was established to govern Iraq. Shortly thereafter, the UN Security Council adopted Resolution 1483, which included a provision calling on all States to take appropriate steps to prohibit the trade in cultural heritage illegally removed from the National Museum and other institutions and to facilitate its return to Iraq.43 Unfortunately, while steps were being taken to address this initial damage and looting of cultural heritage, further damage and destruction occurred. Criticism, for example, was levelled at Coalition forces for using archaeological sites as military bases. In the case of Babylon, one of the seven wonders of the ancient world, irreversible damage was caused when areas in the middle of the archaeological site were levelled to create a landing area for helicopters and parking lots for heavy vehicles. US military vehicles crushed 2,600-year-old brick pavements, archaeological fragments were scattered across the site, more than 12 trenches were driven into ancient deposits and military earth-moving projects contaminated the site for future generations of scientists. Similarly, substantial damage was caused to the Ishtar Gate, one of the most famous monuments from antiquity. 44 Damage to Iraq’s cultural heritage continued to occur during the ongoing armed conflict. The damage to the minaret of the al-Mutawakkil mosque in Samarra, built over 1,000 years ago, and once the largest mosque in the world, serves as an example of the US approach to cultural heritage used by the Iraqis during the conflict.45 Initially used by insurgents, the US damaged the minaret in ensuing operations. Once the insurgents were routed from the minaret, the US Army used it as an observation and sniper post which, not surprisingly, drew

41 Cruickshank and Vincent, op. cit., pp. 126–7. 42 On 1 May 2003 the US declared that the major combat operation had ended. K.H. Kaikobad, ‘Problems of Belligerent Occupation: The scope of powers exercised by the coalition provisional authority in Iraq, April/May 2003–June 2004’ (2005) 54 International and Comparative Law Quarterly 253. 43 Security Council Resolution 1483, 22 May 2003, para 7. 44 M. Bailey, ‘Iraq war thwarts loan to Louvre’, The Art Newspaper, April 2008. 45 M. Jansen, ‘Bombing and looting Iraq’s heritage’, The Gulf Today, 4 April 2005.

Cultural heritage and armed conflicts 63 opposition fire from insurgents.46 Abandoned by the US forces, insurgents blew its top off to ensure that the US snipers could not reuse it.47 At the same time, continued pillage and looting of archaeological sites took place throughout Iraq, and the illicit trade in Iraqi heritage flourished.48 The first looted antiquities from the National Museum appeared on the art market in New York and Rome shortly after the invasion.49 With the formal end of the US led occupation on 28 June 2004, obligation to protect Iraq’s cultural heritage passed to the Iraqi government; but the continued presence and active engagement of the mainly US coalition forces came with continuing international obligations. Many of these continued obligations are regulated by the international humanitarian laws aimed at protecting cultural heritage.

A history of war and cultural heritage The history of war and the protection of cultural heritage from the scourge of war is characterised by two notions: first that cultural heritage ought to be protected and, second, that this protection nevertheless be subject to the needs of the military to achieve a victorious outcome. This latter notion, to be developed into the doctrine of military necessity, and which underpins all international humanitarian law, is fundamental to an understanding of both the history of the development of the international law applicable to cultural heritage protection during armed conflicts, and an understanding, and ability to interpret and apply, the 1954 Convention.50 Wars have long resulted in the destruction of property and pillaging as war booty. Indeed, many wars have had these as their very aim.51 Often, no distinction was made between military or civilian property, and all was subject to the whim of the victor. According to the Roman concept of ius praedae, the moment that war was declared, the enemy’s property became res nullius, belonging to no one until taken into possession by the victor.52 Yet even then restraint was sought, with

46 L. Harris, ‘US snipers on Samarra’s spiral minaret: The US military says “military necessity” takes precedence over the safeguarding of this Islamic landmark’, The Art Newspaper, March 2005. 47 R. Carroll and K. Diver, ‘Iraqi insurgents blow top off historic monument’, The Guardian, 2 April 2005. It should be noted that some of the damage done was to parts of the minaret that had been reconstructed in the 1960s. 48 See M. Bailey, ‘Archaeological sites the worst casualties’, The Art Newspaper, July–August 2003. There have been estimated to be in excess of 10,000 archaeological sites in Iraq, most of which have not been scientifically excavated. See Forsyth, op. cit., p. 75. 49 M. Bailey, ‘Seized: over 600 objects looted from Iraq’, The Art Newspaper, September 2003. 50 C.J.S. Forrest, ‘The Doctrine of Military Necessity and the Protection of Cultural Property During Armed Conflicts’ (2007) 37(2) California Western International Law Journal 177–220. 51 For a more detailed history of the protection of cultural property during armed conflict, see Gerstenblith (2006) op. cit., pp. 249–59. 52 W.W. Kowalski, ‘Claims for Works of Art and Their Legal Nature’ in Resolution of Cultural Property Disputes – The Permanent Court of Arbitration/Peace Palace Papers, The Hague: Kluwer International, 2004, p. 31.

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the Greek historian Polybius calling for the protection of cultural property from seizure by foreign entities.53 The earliest writings of ancient civilisations evince some attempt to limit unbridled barbarity and to codify the resulting rules of war. Whilst the earliest written evidence of a systematic code that regulated war was that of the Saracens, based on the Koran, the modern conception of the law of war might be said to have begun in 1598 with the publication of Gentilis’ De iure belli, followed in 1625 by Grotius’ De iure belli ac pacis. The notion developed that while the object of warfare was to achieve the submission of the enemy, which may require the disabling of as many enemy combatants as possible and the destruction of their equipment, fortifications and victuals, this should only be achieved in a manner that does not cause any unnecessary suffering or damage. The protection of person and property which did not contribute to an enemy’s strength, and whose injury or destruction did not contribute to the opposing belligerent’s military advantage, gradually evolved into a principle of distinction. In 1772, in The Social Contract, Jean-Jacques Rousseau developed this principle as one which required a belligerent to distinguish between the military forces and equipment of the State on the one hand and its civilian population and property on the other. The latter was to be protected as far as possible, and damage and destruction would be only that which was absolutely necessary to achieve a military objective.54 This limitation on the means of waging war was not, however, necessarily humanitarian in nature, and much of the early restraints were based on economic, political and military considerations.55 Nevertheless, the recognition for the need to balance the considerations of humanity and the military actions necessary to win a war took hold and appears in the earliest writings on the nascent international law.56 These notions were further developed by Henry Dunant, the founder of the Red Cross, in Un Souvenir de Solfirino, published in 1862. The earliest restraint on destruction of cultural heritage related to the sparing of temples, churches and similarly sacred and hallowed places.57 Whilst this recognition extended to the protection of cultural heritage during armed conflict, it did not necessarily extend to the appropriation of cultural heritage during, but more often at the conclusion, of war. Whilst wanton destruction was minimised, pillage and appropriation were more readily regarded as the right of the victor.58

53 B. Bengs, ‘Dead on Arrival? A Comparison of the Unidroit Convention on Stolen or Illegally Exported Cultural Objects and U.S. Property Law’ (1996) Transnational Law and Contemporary Problems 503, 509. See further H. McCoubrey, International Humanitarian Law: Modern Development In The Limitation Of Warfare, 2nd edn, Dartmouth: Ashgate, 1998, pp. 8–17; A.P.V. Rogers, Law on the Battlefield, 2nd edn, Huntington: Juris Publishing, 2004, p. 1. 54 O’Keefe (2006) op. cit., p. 12. 55 C. af Jochnick and R. Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’ (1994) 35 Harvard International Law Journal 49, 53. 56 See Further McCoubrey, op. cit., pp. 8–17; Rogers, op. cit., p. 12; O’Keefe (2006) op. cit., pp. 5–13; Toman, op. cit., pp. 4–5. 57 Toman, op. cit., p. 4. 58 O’Keefe (2006) op. cit., p. 13.

Cultural heritage and armed conflicts 65 That such property might be protected for artistic or historical reasons rather than due to its religious nature only emerged during the Renaissance.59 At the same time, a number of peace treaties included provision for the restitution of property taken during the war, such as the 1648 Münster Treaty, between the Holy Roman Emperor and King of France, and the 1666 Treaty of Oliwa, which bound Sweden to return looted archives and the royal library to Poland.60 Vast amounts of artworks were appropriated and plundered, for example, by Napoleon’s forces in States such as Italy and Egypt. With Napoleon’s defeat, however, these acts were condemned as unlawful plunder, being ‘contrary to the practise of war between civilised nations’.61 By the middle of the nineteenth century, military technological developments which greatly increased the power of destruction and injury, was offset by the movement to humanise war. This was particularly evident in the American civil war, during which a codification of the laws of war in the Instructions for the Government of Armies of the United States in the Field in 1864, known as the Lieber Code, sought to introduce the concept of the doctrine of military necessity.62 Drafted by Dr Francis Lieber, a law professor at Columbia University, the code was in response to the necessity of providing detailed rules of war for the huge number of volunteer officers and men engaged in the US Civil war. While the Union did not wish to recognise Confederate forces as those of a sovereign State, it nevertheless regarded the conduct of the conflict as if it were between international belligerents for the purposes of the emerging humanitarian law.63 While States had laid down rules as to how their armed forces should be internally controlled and disciplined, and scholars had long proposed rules on the manner in which States should conduct war and treat each other’s combatants, citizens and property, the Lieber Code was the first formal set of rules laid down by a State as to how both its own armies and that of its enemies should be treated. The Code recognised the need to distinguish between the military and civilian population and property, stating that ‘the unarmed civilian is to be spared in person, property and honour as much as the exigencies of war will admit’.64 Section II of the Code addressed private and public property of the enemy, and includes detailed provisions relating to the protection of religious institutions, institutions of learning and museums of fine arts.65 In particular, article 34 provides that a range of properties that fulfil a public benefit, such as schools, universities, hospitals, charitable

59 60 61 62

Toman, op. cit., pp. 4–5. Kowalski (2004) op. cit., p. 35. Toman, op. cit., p. 7. US Army General Order No. 100, issued on 24 April 1864. Reprinted in D. Schindler and J. Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and other Documents, Leiden: Martinus Nijhoff, 2004, p. 3. 63 See further B.M. Carnahan, ‘Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity’ (1998) 92 American Journal of International Law 213, 214. 64 Article 22, Lieber Code. 65 Articles 31, 34, 35 and 36, Lieber Code.

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institutions, churches and museums of the fine arts should not be considered public property for the purposes of appropriation by the opposing belligerent. Article 35 further provided that ‘classical works of art, libraries, scientific collections or precious instruments … must be secured against all avoidable injury even when they are contained in fortified places whilst being besieged or bombarded’. Nevertheless, the Code does provide that if the enemy nation owns works of art, libraries or scientific instruments, these may be ‘seized and removed for the benefit’ of the conquering nation, with the ultimate ownership settled by a peace treaty. However, article 36 further provided that such works of art ‘shall not be sold or given away if captured, nor privately appropriated or wantonly destroyed or injured’. Nevertheless, the protection afforded to civilian property only extended ‘as much as the exigencies of war will admit’. This introduced into the Code the principle of the conduct of war being subject to the concept of military necessity. Military necessity is defined in the code as follows: Military necessity, as understood by modern civilised nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.66 Following the Lieber Code, a number of Conventions and Declarations were adopted in order to ‘humanise’ war.67 For example, as a response to the destruction of historical sites in Strasbourg and Paris, and the destruction of the abbey of St Denis, during the Franco-Prussian war of 1870–71, the 1874 Draft International Regulations on the Laws and Customs of War declared that damage to property that was not imperatively demanded by the necessity of war was forbidden.68 It also provided that ‘all necessary steps must be taken to spare, as far as possible, buildings dedicated to art … provided they are not being used at the time for military purposes’.69 Further, property of establishments devoted to the arts and science was to be treated as private property and thus was not to be appropriated by an occupying power.70 Finally, article 18 of the 1874 Draft forbade the pillage of a place taken by assault, while article 39 prohibited, absolutely, any pillage during belligerent occupation. Unfortunately, a number of States that had attended the Brussels conference which had drafted the proposed International Regulations did not support it as a binding convention, and it was never ratified. It did, however, provide a basis not only for the Institute of International Law’s

66 Article 14, Lieber Code. 67 For example, the 1864 Geneva Convention for the Amelioration of the Condition of Wounded in Armies in the Field recognised the right of wounded to impartial medical assistance and together with those providing medical attention, the right to protection and respect from the belligerent forces. Similarly, the 1868 Declaration of St. Petersburg declared that it would be against the laws of humanity to employ certain small calibre exploding projectiles as their use would uselessly aggravate the suffering and rate of death of combatants. Schindler and Toman, op. cit., p. 91. 68 Schindler and Toman, op. cit., p. 21. 69 Article 17, 1874 Declaration. 70 Article 8, 1874 Declaration.

Cultural heritage and armed conflicts 67 Manual of the Laws and Customs of War adopted in 1880 (Oxford manual), but also for the Hague Regulations.71 The Hague Regulations At the initiative of Czar Nicholas II of Russia, the First Hague Peace Conference met in 1899 in order to create a regime that would regulate the conduct of war, and hopefully encourage ‘lasting peace’. At the conclusion of the Conference, a number of instruments were adopted to regulate various aspects of the law of war. Unfortunately, the Conference could not reach agreement on the limitation or reduction of armaments and so, in 1907, a Second Conference was convened. In light of developments since 1899, including the Russo-Japanese war, a number of the 1899 Conventions were revised and new instruments enacted.72 A number of these instruments addressed the protection of cultural heritage. Annexed to the revised 1907 Convention Concerning the Laws and Customs of War on Land (Convention IV)73 were the Hague Regulations, which effectively codified the customary international law of war at that time, including those on the protection of cultural heritage which had developed since the Napoleonic wars. It contained a number of provisions relating to civilian private property in general. Article 23(g), provides that it was prohibited: ‘[t]o destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’, while article 28 prohibits the pillage of towns or places, even when taken by storm. Furthermore, in relation to occupation, all plunder was expressly forbidden as was the confiscation of private property.74 Convention IV included a further two articles specifically designed to provide protection for cultural heritage; articles 27 and 56. Article 27 provides: In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand. Article 56 of the Rules concerns cultural heritage in occupied territory, and declares: The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be

71 72 73 74

Schindler and Toman, op. cit., p. 21. Schindler and Toman, op. cit., p. 41. Ibid., p. 55. Articles 46 and 47, Convention IV.

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Cultural heritage and armed conflicts treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and sciences, is forbidden, and should be made the subject of legal proceedings.

At the time of drafting the Hague Conventions, a view emerged that the resulting law ought to reflect the realities of war, and that the rules themselves ought not to unduly restrict the military in the ultimate achievement of its objective. As a result the conference took into consideration military necessity as each rule was framed ‘so as to make its observance possible from the military point of view’.75 As such, the limitations placed on the means of conducting warfare were those which did not impede the needs of the military.76 When a rule was stated which was not qualified by a military necessity exception, it was assumed that all military consideration had been considered in the rules formulation and discounted. There are, however, relatively few rules in the Conventions which are not qualified and most, like article 23(g) of Convention IV, which aims to protect the enemy’s property, are subject to an exception when ‘imperatively demanded by the necessities of war’. Similarly, article 27, which attempts to assist belligerents in avoiding property when targeting legitimate sites nearby, is also subject to the doctrine of military necessity. Thus, in sieges and bombardments, the destruction of cultural heritage would not be unlawful if it was an unavoidable incident of the bombardment.77 Unfortunately, the inclusion of the phrase ‘provided they are not being used at the time for military purposes’ has resulted in interpretational problems. Had the phrase not been included, then the damage to such property, whether by way of accident or direct targeting, would have been subject to military necessity, being that which was imperatively demanded by the necessities of war. However, article 27 subjects protection to the precondition that the cultural heritage is not being used for military purposes. While the use of the property for military purposes is not itself a violation of the Rules, such use may be regarded as the only instance justifying direct bombardment rather than any broader military necessity. Any other interpretation, it has been argued, would not only make the inclusion of the phrase referring to its use for military purposes redundant, but the specific inclusion of that phrase can only have been meant to exclude all other situations of military necessity.78 Article 27 imposes a duty on the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand. The failure to fulfil this duty will not, however, relieve the opposing belligerent from their obligation to spare such cultural heritage when

75 W.V. O’Brian, ‘The Meaning of Military Necessity in International Law’ (1957) 1 World Polity 109, 130. 76 af Jochnick and Normand, op. cit., pp. 72–4 (for examples of limitations which did not in fact limit the manner in which wars were conducted at the time). 77 O’Keefe (2006) op. cit., p. 24. 78 Ibid., p. 25.

Cultural heritage and armed conflicts 69 their location is known. It merely facilitates the attempt to avoid damaging such property.79 Article 56, on the other hand, contains no military necessity exemption.80 Since this article applies to cultural heritage under the control of an occupation force, it may no longer pose an obstacle to military operations and thus there is no need for a military necessity exemption to ensure a successful military outcome. Nevertheless, it has been argued that the general military necessity exception contained in article 23(g) of the Rules continues, as a general provision, to apply to such property. As such, the provision has been interpreted as applying only to institutions and historic monuments unconnected with military operations of the hostile belligerent and whose destruction is not demanded by the necessities of war.81 The second limb of article 56, importantly, calls for action to be taken against offending individuals, though it does not specify what actions ought to be taken, leaving this to be determined by each belligerent State. The general tenor of the Hague Conventions and Regulations is that military necessity is a limitation to unrestricted warfare by the structuring of rules that are, by their very nature, limiting. However, military necessity is then reintroduced in the sense of it being used as a justification for evading these newly structured rules. As such, the recognition of the importance of cultural heritage was subject to the doctrine of military necessity so that such property could be damaged or destroyed if necessary to achieve a military objective. Protection only extended so far as that which did not contribute to the enemy’s strength.82 Unfortunately, this codification of the laws of war did little to prevent the commission of wartime atrocities, as the First World War was to attest to.83 The First World War and its aftermath While the Hague Rules provided some protection for cultural heritage, the weight given to military considerations posed considerable threats. These threats were realised in the destruction and devastation of the First World War, highlighting the manifest inadequacies of the international law to protect the cultural heritage. Not only was cultural heritage often used for military purposes, but the doctrine of military necessity justified the destruction or damage of numerous sites throughout

79 B.C. Rodick, The Doctrine of Necessity in International Law, New York: Columbia University Press, 1928, p. 64 (giving as examples, the Russian shelling of hospitals in Rustchuck during the RussoTurkish War, where the Turks had established hospitals flying the Red Crescent throughout the centre of the town in such a way as to make any hostility impossible if these institutions would not be damaged). 80 Toman, op. cit., p. 10. O’Keefe, however, notes that article 56 of the Oxford Manual, as the forerunner of article 56 of the Hague Regulations, had included the proviso ‘save when urgently demanded by military necessity’. O’Keefe (2006) op. cit., p. 31. 81 O’Keefe (2006) op. cit., p. 31. 82 Ibid., p. 11. 83 af Jochnick and Norman, op. cit., pp. 59–60.

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Europe, including the thirteenth-century church of St Gervais, Whitby Abbey, the cathedral at Rheims, the library of Louvain and the old royal palace in Belgrade.84 Nevertheless, the general principle that cultural heritage ought to receive protection appears to have been accepted by all belligerents, many of which took steps to avoid unnecessary destruction. The very real difficulty was the extent to which the principle of military necessity was invoked to evade any protective obligation, posing the risk that the exception was becoming the rule. At the conclusion of the War, the Commission on Responsibilities of the Preliminary Peace Conference of Paris produced a draft list of war crimes, which reflected the customary international law of the time and the Hague Rules, and which included the ‘wanton destruction of religious, charitable, educational and historic buildings and monuments’. Unfortunately, the political forces of the day prevented any trials.85 At the same time the Treaty of Versailles provided for the restitution of indentified cultural heritage back to the territory from which it came. It also introduced the concept of restitution in kind, by which cultural heritage of one State was to be transferred to the opposing belligerent States as compensation for lost, and essentially irreplaceable, cultural heritage. For example, pursuant to article 247 of the Treaty of Versailles, Germany was required to deliver to the library of Louvain manuscripts, incunabula, books, maps and objects of collection corresponding in number and value to those that had been destroyed by the Germans.86 By 1918, it was recognised that the Hague Regulations were ineffective in protecting cultural heritage during armed conflicts. The initiative to draft a new protective regime was taken up by the Netherlands Archaeological Society. The Society’s report proposed a reorientation of the protective regime by imposing obligations on States in whose territory the property was found rather than simply imposing an obligation on the opposing belligerent to refrain from damaging or destroying ‘enemy’ cultural heritage. This obligation was to refrain from using cultural heritage for any military purposes, which would enable a demilitarised, or protective zone, to be established around the property, insulating it from the effects of war. The report did not however indicate to what extent ‘these obligations might be abrogated on the grounds of military necessity’.87 The extent to which some cities would become completely demilitarised due to the number of overlapping protective zones, given the number and locality of cultural heritage sites, was recognised, but endorsed as acting as ‘sanctuaries for art’. This was, however, unlikely to be supported by many States given the necessities of war. The report also called for peace-time duties, including the drawing up of national inventories of properties to be protected in times of war, as well as the establishment of an international office which would co-ordinate the agreement of States

84 85 86 87

O’Keefe (2006) op. cit., p. 38. Ibid., pp. 43–4. Kowalski (2004) op. cit., p. 39. O’Keefe (2006) op. cit., p. 42.

Cultural heritage and armed conflicts 71 as to the establishment of demilitarised zones and the establishment of a neutral commission of enquiries to adjudicate disputed incidents involving cultural heritage between belligerents. The Society, being a non-governmental organisation, had no powers to further develop this initiative. It was, however, widely distributed amongst similar Societies in other States, and the principles upon which it was based was to play an important part in the continued evolution of the laws of war. The development of international law, however, was in the hands of States. A particular concern that had arisen out of the destruction of the First World War, which galvanised State action, concerned the need to update and modernise the laws pertaining to bombardment from the air. In 1923 the Hague Draft Rules Concerning the Control of Wireless Telegraphy in Times of War and Air Warfare were drawn up by a Commission appointed by an inter-governmental Conference on the Limitation of Armament. Importantly, the draft rules took up the Netherlands Archaeological Society’s idea of cornering off areas around cultural heritage that required protection, on the condition that such property was not used by that State for a military purpose. This, however, was to be a supplementary optional regime, and the general rule of aerial bombardment was that it should be restricted to targets which served a military function. Whilst cultural heritage would not then fall within the legitimate targets of aerial bombardment, the draft rules included an article which required that all necessary steps must be taken to spare as far as possible buildings dedicated to public worship, art, science, or charitable purposes and historic monuments.88 Reflecting Rule 27 of the 1907 Hague Regulations, such properties were also to be marked in a way capable of identification from the air. The Draft Rules of Aerial Warfare were unfortunately never adopted in legally binding form, but its provisions were said to represent, to a great extent, the customary rules and general principles underlying the conventions on the law of war on land and sea. Whilst slowly developing the customary international law on the protection of cultural heritage in the event of armed conflict, there was as yet no conventional regime to address the destruction that had occurred during the First World War.89 A further attempt at developing such a regime was supported by the League of Nation’s International Museums Office in 1930 when it circulated a draft convention prepared by Nikolai Roerich and Georges Chklaver. Whilst this initiative stalled internationally, it was taken up by the Pan-American Union, and adopted as a binding Convention; the 1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (the Roerich Pact).90 The Convention requires States to consider cultural heritage to be neutral and to be respected and protected by belligerents. Importantly, there was no military

88 Schindler and Toman, op. cit., p. 315. 89 O’Keefe, op. cit., pp. 44–51. 90 Schindler and Toman, op. cit., p. 991. This is still in force between the United States, Brazil, Chile, Columbia, Cuba, Dominican Republic, El Salvador, Guatemala, Mexico and Venezuela.

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necessity justification for the damage or destruction of cultural heritage; the only exception being when it was being used by a belligerent for a military purpose. It also required States to draft an inventory of protected sites and implement legislation to give effect to the protection regime established. Furthermore, the Convention adopted a specific symbol (three red balls in a triangular formation) which would be used internationally to designate protected sites. Whilst the destruction occasioned by the First World War was, perhaps, becoming a distant memory by the mid-1930s, the outbreak of the Spanish civil war, and the destruction of Guernica and cultural heritage sites, prompted a further international enquiry into the protection of cultural heritage during armed conflict. In 1938, The League of Nations distributed to member states the Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War. Unfortunately, the drafting was undertaken in a manner which deferred to the interests of the military. The committee stated that it had ‘carefully refrained from proposing any rules or measures which would prove inoperative or inapplicable when the time came’.91 As such, rather than attempting to limit the destruction caused by an opposing belligerent, the draft imposed the primary burden of protection on the State on whose territory the cultural heritage was situated by requiring cultural heritage sites to be appropriately protected and defended, and importantly, to be isolated from militarily important sites. The property to be protected was considerably narrower than those covered by the earlier conventions, limited essentially to historic monuments, including movables within them.92 This did include refuges which were immune from any attack as long as they were not used for military purposes, and which were isolated from possible military targets, which could house movable cultural heritage. Given that the drafting was, in some respects, prompted by the Spanish civil war, the convention sought in some way to address what was in that case a wholly internal issue. It did this simply by indicating, in article 10, that State Parties to the convention might ‘lend their friendly assistance to the contending parties’ of the civil war, ‘for the purposes of safeguarding the threatened historic and artistic treasures’, effectively on the basis that these treasures were the heritage of all humankind, therefore justifying the concern of other States. Finally, article 3(3) required states to punish any persons looting or damaging monument or works of art in times of war. Unfortunately the outbreak of the Second World War prevented the convening of the diplomatic conference that was to consider the draft Convention, and while the International Museums Office issued a Declaration on the Protection of Cultural Property in the Course of Armed Conflict, which captured most of the essential features of the draft Convention, the degree of destruction, damage and systematic looting of cultural heritage during the war reflected its impotent status. Nevertheless, these developments, together with the earlier initiatives embodied in

91 Toman, op. cit., pp. 18–19. 92 O’Keefe, op. cit., pp. 55–6.

Cultural heritage and armed conflicts 73 the Netherlands Archaeological Society’s report, the 1923 Draft Hague Rules of Air Warfare and the Roerich Pact provided a basis to revisit the protection of cultural heritage during armed conflict in the aftermath of the most destructive war for cultural heritage. The Second World War and the 1949 Geneva Conventions The Second World War visited more destruction on the world’s cultural heritage than any other. Air bombardment, in particular, caused extensive and indiscriminate damage. Whilst a number of historic English cities suffered extensive damage in the Baedeker raids, including Exeter, Bath, Norwich, York and Canterbury, the historic cities of Germany, such as Lübeck, Cologne, Würzburg and Hamburg, and many in Japan, such as Osaka, Nagoya, Yokohama and Kobe, were almost obliterated. The Allied view was that while targets were to be limited to only those whose destruction offered a distinct military advantage to the belligerent, any collateral damage caused during the targeting of a military objective was lawful. The principle of military necessity effectively justified any damage to the cultural heritage, except that which offered no distinct military advantage, as was therefore nothing more than deliberate, wanton destruction.93 The lack of any distinct military advantage did, however, save a number of cities from bombing, or at least from extensive damage to its cultural heritage. Rome, for example, held a limited strategic military position, and though it was subjected to some bombing, these were sparing and little damage was caused to its cultural heritage.94 On land, the doctrine of military necessity was widely interpreted so that, while cultural heritage was not to be specifically targeted, any damage caused by way of achieving a military advantage was lawful. For example, while conscious of the importance of the cultural heritage in Italy, the Commander of the Allied Expeditionary Force in Italy, General Dwight Eisenhower, in an order to all commanders, commented that: Today we are fighting in a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which by their creation helped and now in their old age illustrate the growth of the civilisation which is ours. We are bound to respect those monuments so far as war allows.95 Nevertheless, qualifying the concluding phrase ‘so far as war allows’, Eisenhower went on to state that ‘[n]othing can stand against the argument of military necessity’.96 Fortunately, both the Allies and the Axis commanders did show

93 O’Keefe (2006) op. cit., p. 65. 94 Ibid., p. 70. 95 General D. Eisenhower, Order of the Day, 24 December 1943, as quoted in O’Keefe (2006) op. cit., p. 74. 96 Toman, op. cit., p. 74.

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restraint, and many important sites, including the cities of Rome and Paris, were spared despite their destruction or damage possibly being a military advantage. Not all were so fortunate, and important heritage sites such as the Benedictine abbey at Monte Cassino and much of the historic quarter of Florence were destroyed.97 Whilst the immovable cultural heritage of Europe was extensively damaged or destroyed from shelling and bombing during fighting, the movable cultural heritage was subject to extensive pillage, plunder, looting and destruction, particularly in occupied territories. The German attitude to cultural heritage in occupied territory evinces a distinctly schinsophrenic character.98 Given the Nazi elite’s penchant for art and collectables, it is not surprising that some efforts were made to protect cultural heritage, particularly in those occupied territories that were considered to be part of the Third Reich, such as Austria and The Netherlands.99 A protective unit, the Kunstschutz corps, was established to provide a measure of protection for the cultural heritage in occupied territories, but was often undermined, and sometimes directly opposed, by those charged with the appropriation and exportation to Germany of artworks deemed valuable by the Nazi elite. The latter included a large variety of organisations, foremost of which was Albert Rossenberg’s Einsatzstab Reichsleiter Rosenberg. Other, competing organisations, were created by members of the Nazi elite, including the Ahnenerbe (the SS special archaeological research branch), von Ribbentrop’s Special Purpose Battalion of the Waffen SS, and detachments acting directly under Goering and Bormann. Together these organisations appropriated vast amounts of cultural heritage. What was not deemed of merit by the Nazi regime was destroyed, leaving swathes of destruction through Poland, Ukraine and Byelorussia. With the Allied advance into mainland Europe through Italy in 1943, the US established the American Commission for the Protection and Salvage of Artistic and Historic Monuments in Europe to co-ordinate protection of works of cultural value in areas occupied by Allied forces. A special branch, Monuments, Fine Arts and Archives, was formed with officers trained to assist in identifying and preserving cultural heritage.100 A similar branch was established by the British forces. These branches provided information to commanders about cultural heritage sites within the war zones, and often had the difficult job of balancing the desire to

97 O’Keefe (2006) op. cit., p. 76–7. 98 For a detailed account of the Nazi looting of Europe and the Jews, see L.H. Nicholas, The Rape of Europa: the Fate of Europe’s Treasures in the Third Reich and Second World War, London: Macmillan, 1994; E. Simpson (ed.), The Spoils of War, New York: Harry N. Abrams Inc., 1997; H. Feliciano, The Lost Museums: The Nazi Conspiracy to Steal the World’s Greatest Works of Art, Basic Books, 1997; N. Palmer, Museums and the Holocaust, Leicester: Institute of Art and Law, 2000. 99 L.H. Nicholas, ‘World War II and the Displacement of Art and Cultural Property’, in Simpson, op. cit., p. 41. 100 This was changed to the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas to take into account the war in Asia. O’Keefe (2006) op. cit., p. 77.

Cultural heritage and armed conflicts 75 protect such sites with the military’s views on the necessity of possible destruction. Furthermore, the Allied recognition of the looting and appropriation of occupied territories by German forces prompted the Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control in 1943, which allowed the invalidation of any transfer or dealings in property that had occurred during the time of the Axis occupation. Importantly, this covered many of the forced sales of Jewish owned property in occupied Europe. The complex restitution process that followed the end of the war was based upon public international law principles relating to the law of war, and was strictly a matter between specific States and the Allied Control Council and Military Governments. As such, States, and not private individuals, sought the restitution of property on the basis of their removal from that State’s territory, irrespective of who actually owned that property at the time it was looted.101 Nevertheless, individuals can, and continue, to take direct action against subsequent possessors of material looted during the Second World War. The defeat of Germany did not put an end to the looting of cultural heritage. Russian forces systematically looted those parts of Germany under its control following a policy of reparation for German appropriations.102 Whilst not following any policy of looting, and in the face of explicit rules to the contrary, Allied forces, especially US forces, were also guilty of looting in occupied territories.103 General Order 68 had made a point of highlighting the seriousness with which ‘looting, wanton damage and sacrilege of buildings’ was to be taken.104 With the final surrender of Germany, the Office of Military Government of Germany had also put into place a number of rules designed to protect Germany’s cultural heritage, and to co-operation with the German civil authorities in this respect.105 The aftermath of the war included the convening of the Military Tribunal at Nuremberg. Article 6(b) of the Tribunal’s Charter listed as a war crime ‘plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’.106 Importantly, the Tribunal regarded this as reflecting the customary law of war, and which was also reflected in articles 46 and 56 of the 1907 Hague Regulations. On this basis Alfred Rosenberg was found guilty of war crimes, and subsequently sentenced to death. The destruction of cultural heritage during the Second World War shattered any illusion that existing international law provided any effective protection. In the wake of the vast destruction of property and civilian casualties, the immediate

101 Kolaski (2004) op. cit., pp. 40–41. 102 For a detailed account of the appropriation of the cultural heritage looted from Germany, see K. Aisha and G. Kosovo, Stolen Treasure: The Hunt for the World’s Lost Masterpieces, London: Weidenfeld and Nicolson, 1995. 103 K.D. Alford, Nazi Plunder: Great Treasure Stories of World War II, Cambridge: Da Capo Press, 2000. 104 O’Keefe (2006) op. cit., p. 75. 105 Ibid., pp. 84–6. 106 Schindler and Toman, op. cit., p. 1253; O’Keefe, op. cit., p. 88.

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response was the adoption in 1949 of the Geneva Conventions. Unlike the 1907 Hague Conventions, which were directed at the activities of States in waging war, the Geneva Conventions aimed to protect civilians, their property and sick and wounded belligerents. Four Conventions were adopted, dealing with wounded and sick in the armed forces in the field (Convention I), wounded, sick and shipwrecked members of the armed forces at sea (Convention II), prisoners of war (Convention III) and the protection of civilians (Convention IV).107 While these Conventions did not provide any specific protection for cultural heritage, it did provide, in article 53 of Convention IV, for the protection of civilian and some State property in occupied territory, which could include cultural heritage. Article 53, however, provides protection unless ‘such destruction is rendered absolutely necessary by military operations’. The creation of a general limiting rule, which was then subject to an overriding exemption clause, left cultural heritage in considerable danger. Conscious that this rule was of general application, the necessity of adopting rules specific to cultural heritage was recognised.

The doctrine of military necessity The creation of an international convention specifically designed to protect cultural heritage during armed conflict naturally fell within the broad ambit of international humanitarian law. As such, it is underpinned by the balancing of the need of the military with the humanisation of war and its attempt to reduce suffering, damage and destruction. This doctrine of military necessity, fundamental to international humanitarian law, also lies at the heart of the 1954 Convention, and requires some consideration before the conventional provisions themselves are considered. The doctrine of military necessity underpins both the legal justification for going to war ( jus ad bellum), and the manner in which a war is waged ( jus in bello).108 Jus ad bellum focuses on the actions of States, and the principle of necessity determines whether a situation warrants the use of armed force. Modern application of the principle of necessity is restricted to the use of force in self defence or in accordance with the collective security system established under Chapter VII of the United Nations Charter, and has as its aim the maintenance of international peace and security.109 While debate may arise in any given situation as to whether the need to resort to armed conflict has arisen, there is agreement that such a debate is required; that is, that the requirement of necessity must be met. If this

107 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; and Convention (IV) relative to the Protection of Civilian Persons in Times of War. Schindler and Toman, op. cit., pp. 453–689. 108 J. Gardam, Necessity, Proportionality and the Use of Force by States, Cambridge: Cambridge University Press, 2004, p. 1. 109 Dinstein, op. cit., p. 1.

Cultural heritage and armed conflicts 77 requirement of necessity is met, States are not then free to wage unrestricted warfare. The forceful response must be proportionate to the legitimate aims of the use of force.110 If, for example, armed force is required as a measure of self-defence, the force used by a State must be the minimum that is required to defend itself. For example, the amount of force used by the Coalition forces in the First Gulf War in 1991 was only that required to achieve the aims of the Security Council Mandate in Resolution 678; that is the expulsion of Iraqi forces from Kuwait, ensuring Iraqi compliance with all relevant Security Council Resolutions and the restoration of peace and security in the region.111 This proportionality requires consideration of the level of destruction of enemy territory, infrastructure, property, combatant casualties and collateral civilian damage.112 At the same time, the actual manner in which the war is waged requires international regulation, and addresses issues such as the treatment of prisoners of war, wounded combatants, the nature of the weapons that might be used and the protection of civilians and their property, as well as cultural heritage. This body of international humanitarian law applies at the advent of armed conflict to all belligerent parties, irrespective of which party was the aggressor or the basis upon which the armed conflict is waged. For example, whether the Coalition’s invasion of Iraq was lawful in international law has no bearing on the international humanitarian law that is to apply once an armed conflict exists. This international humanitarian law, acting as a limitation to unbridled barbarity, essentially seeks to achieve a balance between the need to achieve a military victory and the needs of humanity. As such, this delicate balance is central to the drafting of conventional international humanitarian norms, including those applicable to cultural heritage. It is generally accepted then that these norms were constructed in a way that takes into account the requirements of military necessity and thus achieves a balance between these requirements and with the needs of humanity.113 As such, the ‘default position’ is that military necessity is already taken into account in the structure of the rules. It can only then be raised if the conventional humanitarian rules themselves are qualified by reference to a military necessity exception. In the words of Burleigh Cushing Rodick: there are certain rules of international warfare so firmly established that no employment of the doctrine of necessity will excuse their violation unless the rule itself contains a more or less definitive statement of the circumstances under which a violation by reason of this plea will be excused. This theory holds, in other words, that the doctrine of necessity should be limited to those

110 Gardam, op. cit., p. 12 (with regard to the difficulty in determining the focus of this proportionality). 111 See M. McDougal and F. Feliciano, The International Law Of War: Transnational Coercion And World Public Order, New Haven: New Haven Press, 1994, p. 72; and Gardam, op. cit., p. 16. 112 Gardam, op. cit., p. 17. 113 O’Brian, op. cit., p. 150; Dinstein, op. cit., p. 18; Toman, op. cit., pp. 73 and 81 for a list of examples of express usage of a military necessity exception.

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Cultural heritage and armed conflicts circumstances in which the law has in advance given an express sanction for its use.114

This qualification arose due to the difficulty in delimiting military necessity exceptions in the context of reaching agreement amongst a large number of States with different military capabilities, many of which were concerned that too strict an adherence to the growing body of limitations on the means and methods of waging war would lead to military disadvantage.115 Thus, it was concluded that while the proscriptive conventional norms might be viewed as a default fulcrum between the poles of humanity and military necessity, certain specific military situations might require this fulcrum to be moved.116 It is in the express invocation of military necessity exceptions that the fulcrum is moved, and that exceptions are created. For example, whilst article 27 of the Hague Conventions provided that ‘in sieges and bombardments all necessary steps must be taken to spare … buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected’, this is only ‘as far as possible’ and ‘provided they are not being used at the time for military purposes’. The latter two clauses effectively limit the extent to which protection can be achieved, giving effect to the need to take into account military necessity. This approach to drafting international humanitarian norms, and the need to give effect to the doctrine of military necessity, is reflected in, and underpins, the 1954 Hague Convention.

1954 Hague Convention Overview of the Convention The 1954 Hague Convention was a direct and swift reaction to the vast destruction of the European cultural heritage during the Second World War. It sought to address the shortcomings evident in the Hague Conventions of 1899 and 1907 and to supplement the post war Geneva Conventions by providing a comprehensive protection regime which would not only address rights and duties of States relating to cultural property during an armed conflict, but also prior to and following such a conflict. It thus sought to impose a permanent protection regime on State Parties, though the core protective measures would only come into effect during an actual conflict. The structuring of the core protective measures in the convention required the almost impossible balancing of the interests of the military on the one hand, and the protection of cultural property on the other.

114 Rodick, op. cit., pp. 59–60. 115 Detter, op. cit., p. 395. 116 It is said that ‘[h]istorically … the line of compromise has, more frequently than not, tended to be located closer to the polar terminus of military necessity than to that of humanity’. McDougal and Feliciano, op. cit., p. 523.

Cultural heritage and armed conflicts 79 To ensure that the convention was one which would be acceptable to States with a large and potentially active military, the doctrine of military necessity required incorporation. As such, the drafters of the convention had sought to produce ‘a realistic draft, rather than an “ideal” one’ in the belief that ‘modest, but enforceable provisions would better serve the cause of saving monuments’ than a convention which sought ‘an ideal of unlimited protection’.117 Just whether an appropriate balance was achieved has been the subject of ongoing debate and reflection in light of armed conflicts since the Convention came into force in 1956.118 At its core, the Convention requires that the protection of cultural property ‘shall comprise the safeguarding of and respect for’ cultural heritage.119 The material protection of ‘safeguarding’ and the ‘legal restraint’ required of ‘respecting’ cultural heritage120 requires both positive and negative duties during times of peace as well as during times of armed conflict, and by both States in whose territories cultural property that is to be protected is found and States who might be engaged in armed conflict in the territory of another State. While this regime applies to all cultural heritage as defined in the Convention, a more rigorous protective regime was also created for a restricted category of cultural heritage of ‘very great importance’. Supplementing both the ‘general’ and ‘special’ protection regimes are rules that address the transport of cultural heritage, the protection of personal engaged in the protective function, as well as a regime of information sharing and international control to ensure protection. Much of the regulation in this regard is not contained in the Convention itself, but in a set of Regulations,121 which, though separate, do form an integral part of the Convention.122 Finally, the Convention creates the Blue Shield, a visible emblem that may be used to identify both property under the general protection regime, and when used three times in the form of a triangle, identifies heritage listed on the Register for Special Protection.123 Unfortunately, agreement could not be reached on all aspects of the protective regime that was needed to address the destructive activities that had been evident in the Second World War. In particular, a number of States could not agree on the regime that ought to apply to the exportation and importation of cultural

117 O’Keefe (2006) op. cit., p. 93. 118 The Convention entered into force on 7 August 1956, three months after the fifth instruments of ratification. 119 Article 2. 120 O’Keefe (2006) op. cit., p. 94. 121 Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict. 122 Article 20. 123 Articles 6, 10, 16 and 17. The distinctive emblem of the Convention takes the form of a shield, pointed below, persaltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle).

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heritage from occupied territories. Rules to address this were therefore not included in the Convention itself, but in a separate Protocol, allowing a number of States to become a party to the Convention without being bound by the Protocol’s obligations. The Convention has applied to various States Parties in a number of conflicts in the past fifty-three years. However, the destruction of cultural property in conflicts in Afghanistan following the Soviet invasion, in the Iran and Iraq war, in the first and second Gulf wars, particularly in Kuwait, in the conflict in Cambodia and Vietnam, in the conflict in the former Yugoslavia, and the ongoing conflicts in Lebanon, Israel and Palestinian territories, highlighted a number of inadequacies in the Convention and required its revision, which took the form of a second Protocol to the Convention in 1999. A major area of concern had been in regard to the provision of the military necessity justifications contained in the Convention.124 The preamble’s guiding principles The preamble provides both an historical context for the Convention as well as embodying the underlying central principles that underpin the Convention’s articles. Setting the Convention within the context of earlier international humanitarian law developments, the fourth recital declares that the Convention is ‘[g]uided by the principles concerning the protection of cultural property during armed conflict, as established in the Conventions of The Hague of 1899 and of 1907 and in the Washington Pact of 15 April 1935’. Furthermore, the first recital places the Convention within the historical context of the Second World War, recognising that ‘cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction’. More importantly, the second and third recitals embody the first international recognition of the emerging idea of a ‘common cultural heritage of all humankind’ and the rationale for its protection. It is declared ‘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’ and ‘that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection’. As O’Keefe notes, these principles do not refer to States or the international community, but rather ‘peoples’ and ‘mankind’, reflecting its ‘humanitarian character’ and ‘identifying, more accurately, as it does, the ultimate beneficiary of its provisions’.125

124 P.J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc. CLT-93/WS/12, p. 54. 125 O’Keefe (2006) op. cit., p. 95.

Cultural heritage and armed conflicts 81 The destruction of cultural property in times of war has often resulted in pleas for its protection on the basis that the cultural heritage belongs to the common heritage of all humankind, and should thus be spared from the effects of a conflict between only a few states. During the Franco-Prussian war, for example, the unintended bombardment by Prussians of the abbey of St. Denis and of important cultural heritage sites in Strasbourg and Paris, and the destruction of the cathedral of Rheims and of the university library of Louvain during the First World War, led to international condemnation of the destruction to ‘the common heritage of cultured nations’.126 Such sentiment was also contained in the Roerich Pact, supported by the League of Nation’s International Museums Office, which sought to ‘promote the well-being of respective Nations and advancement of the Arts and Sciences, in the common interest of humanity’. Importantly, ‘institution dedicated … to the Arts and Sciences constitute a treasure common to all the Nations of the World’. Similarly, the League of Nations Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War in 1938 was framed within the rhetoric of a common heritage; best reflected in the International Museum’s Office official comment that this was an issue for ‘all Governments and peoples who care for their preservation of their common artistic and historic heritage’.127 The draft itself embodies this sentiment, with article 5(1) recognising that it was the joint and several responsibility of parties to protect monuments of artistic and historic interest in times of war’, which, according to article 7(6) included ‘buildings the preservation of which is the concern of the entire international community’. The preamble to the 1954 Hague Convention is a continuation of this theme. Finally, the preamble not only orders States Parties ‘to take all possible steps to protect cultural property’,128 but recognises that ‘such protection cannot be effective unless both national and international measures have been taken to organize it in times of peace’.129 This reference to duties to be taken in times of peace highlights the difference between the new Convention and those referred to in the fourth recital, as well as directing States to give effect to the Convention via national rules. Scope of Application of the Convention The Convention is part of the post Second World War development in international humanitarian law, and closely related to the 1949 Geneva Conventions. Its scope thus mirrors that of the Geneva Conventions, applying to armed conflict of an international character which may arise between two or more of the High Contracting Parties, whether formally declared or not, even if one of the

126 127 128 129

Ibid., p. 20. O’Keefe (2006) op. cit., p. 20. Sixth recital. Fifth recital.

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belligerents does not recognise a formal state of war.130 The latter is a particularly important qualification since very few, if any, States involved in recent armed conflicts have formally declared a state of war. ‘International armed conflict’ is therefore to be widely interpreted, and includes any event between two or more States leading to intervention of the armed forces of any of the States. It includes, for example, the recent involvement of foreign States’ armed forces (such as those of the US, UK and Australia) in both Afghanistan and Iraq. Furthermore, a state of international armed conflict will exist upon the commencement of hostilities, irrespective as to how those hostilities arose or the legality of the use of force.131 As such, while debate may exist as to whether the Coalition invasion of Iraq in 2003 was legal in an international law sense, this in no way affects the existence of an armed conflict for the purposes of the 1954 Convention. For the Convention to be operative, however, there must be more than one State Party involved.132 In a conflict involving more than two States, it does not, however require all involved States to be a party to the Convention. Article 18(3) provides that ‘[i]f one of the Powers in conflict is not a Party to the present Convention, the Powers which are Parties thereto shall nevertheless remain bound by it in their mutual relations’. For example, while some States that made up the Coalition in its actions in Iraq in 2003 were party to the 1954 Hague Convention, such as Australia and Poland, a number of others, such as UK and US, were not.133 For those that are a party to the Convention, they are bound by it in their mutual obligations. Furthermore, if a non-State party declares that it ‘accepts the provisions’ of the Convention ‘and so long as it applies to them’, then those States party to the Convention are bound to that State by the terms of the Convention.134 That the Convention ought to be widely applied is also evident in article 18(2), which provides that the ‘Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. As such, no actual armed conflict need exist for the Convention to apply between State Parties where one State is in occupation of all or part of another State Party.

130 Article 18(1), which is the same as article 2 common to all four 1949 Geneva Conventions. 131 M.E. O’Connell, ‘Occupation Failures and the Legality of Armed Conflict: The Case of Iraqi Cultural Property’ (2004) 9 Art Antiquity and Law 323, 328. See also K. Chamberlain, War and Cultural Heritage, Leicester: Institute of Art and Law, 2003, p. 3. 132 O’Keefe (2006) op. cit., p. 96. 133 At the time, both the UK and US were, however, signatories to the Convention, and therefore could not do anything that was not compatible with its purpose. The US ratified the 1954 Convention on 13 March 2009. The UK has not ratified the Convention. 134 This has only happened once, when, in 1962, faced with constitutional difficulties in ratifying the Convention, the Federal Republic of Germany indicated that it would be bound by the Convention’s terms. See Toman, op. cit., pp. 199–201 for a detailed discussion on the nature of this ‘acceptance’ of the Convention.

Cultural heritage and armed conflicts 83 Many armed conflicts today do not, however, involve two independent States, and cannot necessarily be described as being of an international character. The characterisation of an armed conflict as ‘international’ is problematic as this is more often a political issue that may be dependent upon the recognition of an entity as a State. Where two States are involved, but one State does not recognise the validity of the governing regime of the other States, this will not detract from the characterisation of the conflict as ‘international’. For example, while a number of Coalition States refused to recognise the Taliban as the Government of Afghanistan after it seized power in 1996, the fact that the Taliban regime was in control of most of the territory of Afghanistan meant that it was effectively the de facto Government.135 As such, the conflict could be characterised as ‘international’. More difficult, however, is the case where competing claims exist over the same territory. For example, the conflict in the Levant has been difficult to characterise given the political uncertainty as to the recognition (or creation) of the Palestinian State. Similarly, the conflict in the former Yugoslavia was bound up with issues of the separate statehood of Serbia and Croatia, and more recently of Kosovo. Even more difficult are those conflicts in which one State is engaged in an armed conflict with a non-State actor in another State. Israel, for example, in its invasion of Lebanon in 1982, wished to characterise the conflict as one between it and the Palestinian Liberation Organisation, a non-State actor based in Lebanon, rather than with the state of Lebanon itself. Giving effect to the wide application of the Convention, Israel did, however, appear to accept that the Convention applied in this conflict.136 The Convention attempts to bring its protective regime to bear on conflicts which are not clearly of an ‘international’ nature by providing, in article 19(1), that ‘[i]n the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, at a minimum, the provisions of the present Convention which relate to respect for cultural property’.137 This article most clearly applies to events which might be described as a civil war, or of internal conflicts involving liberation movements. The actual State Party is therefore still bound to adhere to the Convention even though the armed conflict is not with another State, but usually with some belligerent group (a non-State actor). The very real difficulty with this is the attempt to impose international obligations in what is the internal affairs of one State, and more particularly to groups of belligerents that do not have any international character, and thus incapable of having international rights and duties. While article 19(1) then applies to the State itself whose armed forces are involved in a conflict, it is more difficult to apply to the opposing belligerent groups. Nevertheless, the Convention is an attempt to encourage implementation of the Convention’s protective regime, and provides

135 Dinstein, op. cit., p. 16. 136 O’Keefe (2006) op. cit., p. 96. 137 Article 19(1) is the same as article 3, common to all four 1949 Geneva Conventions.

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that ‘parties to the conflict shall endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention’.138 To further encourage such ‘special agreements’, the Convention provides that ‘the application of the preceding provisions shall not affect the legal status of the parties to the conflict’.139 Thus, by entering into such an agreement, one belligerent group will not, for example, be regarded as accepting the validity of the opposing group’s status, or even existence. The Convention attempts to remove the potential political consequences of such an agreement. As a further aid to encouraging such co-operation between belligerent groups, the Convention specifically empowers UNESCO to offer its services to the opposing belligerents in order to achieve an implementation of the Convention in the armed conflict. A number of uncertainties exist regarding article 19, one of which is that it is not clear what level of unrest or violence gives rise to an ‘armed conflict not of an international character’. Attempts during negotiations to define the term ‘conflict’ failed, raising the possibility of the Convention applying to a range of actions from mere banditry to rebellions, forms of anarchy and civil war. Further, article 19(1) refers to the application, at a minimum, only ‘of the provisions of the present Convention which relate to respect for cultural property’. Some debate exists as to whether this should be interpreted as referring solely to article 4 of the Convention,140 or a broader reference to all those articles that have a bearing on giving respect to cultural heritage.141 Given the Convention’s more general aim to protect cultural heritage, the latter argument is the more convincing. Given the complex forms of armed conflict that exist today, which often include non-State actors, liberation movements, international peace-keeping efforts,142 and both internal and international conflicts occurring at the same time, a broad interpretation of both articles 18 and 19 ought to ensure that the Convention is applied as widely as possible.143 This includes the possible overlap of articles 18 and 19 to the same conflict, so as to cover all belligerent groups. For example, the armed conflict in Afghanistan was not purely of an ‘international’ nature, since the Taliban regime had fought a long-standing civil war with the Northern Alliance, which continued after the US-led Coalition invasion. The conflict thus had both international and national elements to it.

138 139 140 141 142

Article 19(2). Article 19(4). O’Keefe (2006) op. cit., p. 98. Toman, op. cit., p. 214; Chamberlain, op. cit., p. 72. See Final Act of the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, Resolution I: UN Doc. ST/SGB/1999/13, para. 6.6 and discussion in O’Keefe (2006) op. cit., pp. 99–100. See also Toman, op. cit., pp. 204–5 with particular reference to the UN Peace Keeping mission in Cyprus in 1964. 143 Chamberlain, op. cit., pp. 66–7; Toman, op. cit., pp. 195–220.

Cultural heritage and armed conflicts 85 Definition of cultural property The definition of cultural property, for the purposes of the 1954 Convention, attempted to provide a narrower and more clearly defined object for protection than previously provided for, reasoning that the narrower the ambit of the regime the more likely it would be that adequate protection would be achieved. The scope of application in the 1899 and 1907 Hague Regulations, for example, were considered to be overly broad, explaining the lack of protection achieved in the Second World War. The difficulty faced during negotiations was the narrowing of the definition and, at the same time, trying to ensure that a range of appropriate heritage was protected. As such, the definition contains both narrowing and broadening features. In a broad sense, the definition includes both movables and immovables irrespective of origin or ownership. Article 1(a) gives a non-exhaustive list of what this might include, ‘such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above’. Furthermore, the definition refers to this cultural property as that which is ‘of great importance to the cultural heritage of every people’. This O’Keefe regards as a summation of every State’s cultural property; ‘the full gamut of each high contracting party’s national cultural heritage, as defined by that party itself’.144 This then, is regarded in the Convention as the ‘cultural heritage of all mankind’ since the preamble provides 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’.145 It is, however, more a collective heritage than a common heritage. The definition of cultural property includes two further entities; ‘centres containing a large amount of cultural property’146 and ‘buildings whose main and effective purpose is to preserve or exhibit the movable cultural property’.147 Again, a non-exhaustive list is included in the definition to illustrate the meaning of the latter; which includes museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in previous sub-paragraphs. It is unfortunate that the definition of cultural property includes the buildings that house the cultural property as defined by each State. It would have been preferable to have defined the cultural property as that defined by each State, and then, in a separate article, have

144 R. O’Keefe, ‘The Meaning of Cultural Property under the 1954 Hague Convention’ (1999) 46 Netherlands International Law Review 55. 145 First Recital. 146 Article 1(c). 147 Article 1(b).

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declared that these buildings receive the same protection as the cultural property identified. This would have removed the inclusion in the definition of buildings which in themselves do not have cultural value. Nevertheless, it does provide protection not only for the movable cultural heritage, but the buildings that house them, such as the Baghdad Museum. Centres containing a large amount of cultural property, to be known as ‘centres containing monuments’, could apply to entire towns or cities that have a high concentration of historic buildings, or buildings which house movable cultural heritage, and seeks to prevent a repetition of the bombing of cities such as Dresden and Exeter during the Second World War. It is clear that the cultural property to be protected is that which each individual State determines ought to be protected.148 As such it will vary for each State, dependent on a range of factors, such as the existing legislation of each State which might set out in a general or specific sense cultural property to be protected, and the extent to which the State retains inventories of movable and/or immovable cultural heritage. The UK, for example, immediately prior to its ratification of the Convention, intended to extend general protection to 10,800 immovables.149 Iraq had protected a similar number of immovables.150 Spain, on the other hand, took a very restricted approach and limited its immovables to only those included in the World Heritage list.151 The possible list of movable cultural heritage is naturally vast, and might include the full inventory of all museums and similar collections, possibly including collections of heritage in private ownership. While this might appear to allow a State to declare almost anything to be cultural property for the purpose of the Convention, this is in fact confined by the obligation of States to interpret and implement the Convention in good faith and in a manner which gives effect to the purpose of the Convention.152 While there may very well be differences in how States view this definition of cultural heritage there will be cases where, objectively, it may not be difficult to find a State to be acting in bad faith. For example, where clearly heritage of great importance is being used to further a military objective and the State therefore declared this not to be important, or where unimportant sites are declared to be important simply to act as a shield to protect military installations, the State in whose territory that heritage is found will be in breach of its Conventional obligations by acting in bad faith. While it may appear at first glance to be a wide discretion allowing a State to declare a large number of sites and objects to be its cultural property, this is limited by the duty to act in good faith, as well as by the nature of the core conventional duties undertaken by the States Parties in implementing the Convention which act to limit the affected numbers considerably.

148 O’Keefe (2006) op. cit., pp. 103–5. 149 Consultation Paper on the 1964 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and its two protocols of 1954 and 1999 (September 2005) p. 13. See also O’Keefe (2006) op. cit., p. 107. 150 O’Keefe (2006) op. cit., p. 107. 151 See Chapter 5. 152 Article 26, Vienna Convention on the Law of Treaties.

Cultural heritage and armed conflicts 87 The core Conventional duties At the core of the 1954 Convention is article 2, which provides that the protection of cultural property ‘shall comprise the safeguarding of and respect for such property’. This creates two clearly distinguishable obligations: that of ‘safeguarding’ of cultural property and that of ‘respecting’ cultural property. Together these concepts impose on States proactive, or positive, duties, to act, as well as negative duties of refraining from committing a number of acts in respect of cultural property. These positive and negative duties are imposed during times of peace as well as during armed conflict, and to both States in whose territories cultural property that is to be protected is found and to those States who might be engaged in armed conflict in the territory of another State. The Convention thus requires States Parties to undertake duties before, during and after an armed conflict. Safeguarding cultural property The introduction of the duty to safeguard cultural property was an important development in the Convention since it introduced obligations in times of peace rather than impose duties only once an armed conflict had actually begun. This introduction of peace time duties differentiates it from the previous Conventions that touched on the protection of cultural property.153 The Conference rightly regarded the State in whose territory the cultural property is situated as being in the best possible position to provide the most effective protection regime.154 It essentially imposed on that State a duty to prepare an appropriate regime to protect that cultural property against the foreseeable effects of an armed conflict.155 The Convention does not, however, specify exactly what steps ought to be taken, leaving this to the discretion of each State. It appears that the granting of such a wide discretion as to how that State should safeguard the cultural property was based on the need to refrain from intruding in the affairs of that State and to allow the State to determine the appropriate level of protection based on its financial, material and technical resources.156 An earlier draft of the Convention had required each State to ‘ensure’ the safeguarding of the cultural property situated in the State, but, conscious of the difficulty this posed for some States given the different level of resources available, this obligation was reduced to a duty to prepare for safeguarding of the cultural property ‘by taking such measures as they

153 The 1899 and 1907 Hague Conventions did not provide for any duties to prepare in times of peace for the possibility of protection during an armed conflict. This omission was raised in the 1938 League of Nations Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Time of War. 154 Toman, op. cit., p. 61; Chamberlain, op. cit., p. 33. 155 Article 3. 156 Chamberlain, op. cit., p. 34.

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consider appropriate’.157 The kinds of preparation contemplated by the drafters of the Convention, which were included in an earlier draft of the Convention, included the possibility of establishing refuges, the institution of a civilian service which could undertake the protective measures when an armed conflict arose, the stockpiling of packaging material for the protection of movable property and preparation for specific threats such as fire and collapse of buildings. Such measures had been taken during the Second World War. For example, on the outbreak of war, the Louvre had quickly packed and transported its treasures to country châteaus beyond the immediately possible conflict zones, as had the National Gallery in London, sending its paintings to secure mines in Wales.158 Similar measures had been taken by the Ministry of Culture and Education of Croatia when war broke out in the Balkans in 1991.159 These measures are all those a State ought to implement in order to ensure that, when armed conflict breaks out, the immovable and movable cultural heritage can be protected. While such measures may be in place, the better protective measure would be to ensure that opposing belligerents know what cultural property is to be protected, and to avoid any armed conflict that might affect that cultural property. To achieve this, each State is not only required to identify clearly what is, for the purposes of the Convention, cultural property, but also that all parties to the conflict are aware of what this is. This might require, for example, the deposition of lists, identifying elements and maps to UNESCO for circulation to member States, or to the States (and their armed forces), involved in the conflict. For example, during the Balkan war in the early 1990s, Croatian authorities circulated lists of cultural monuments to opposing belligerents after the medieval fortress of Erdut had been damaged during an artillery barrage.160 To assist in the task of identification, the Convention provides for a distinctive emblem to identify cultural property, though its use, and the timing of its placement, is voluntary.161 While article 3 imposes a broad duty to safeguard cultural property as far as is possible for each State, other provisions of the Convention build on this peace time duty and give it further content. In particular, States Parties undertake to include provisions in their military regulations and instructions that will ensure compliance with the Conventional rules and to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples.162 States Parties are also required to establish, or to plan for the establishment, of

157 Resolution II adopted by the Conference urged State parties to establish a national advisory committee and define its function, which would include performing the tasks required under the Convention. See Toman, op. cit., pp. 60–62 and 355. 158 Nicholas (1994) op. cit., pp. 56 and 95. 159 O’Keefe (2006) op. cit., p. 112. 160 Ibid., p. 114. 161 Articles 6, 16 and 17; Articles 20 and 21 of the Regulations for the Execution of the Convention. 162 Article 7(a). UNESCO has prepared pro forma regulations that States Parties might use to facilitate giving effect to Article 7. For examples of provisions contained in some States’ military manuals, see Toman, op. cit., p. 95.

Cultural heritage and armed conflicts 89 specialised personnel to secure respect for the cultural property and to co-operate with the civilian authorities responsible for safeguarding it during an armed conflict.163 Respect for cultural property The respect required by the Convention for cultural property in a State’s own territory as well as in the territory of other States Parties, both during an armed conflict or any subsequent belligerent occupation in those other States Parties, consists of both positive and negative obligations.164 Three negative obligations are imposed. First, each State is to refrain from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict.165 As such, a State is prohibited, for example, from using a cultural heritage site as a military base or supply depot. Second, each State is to refrain from any act of hostility directed against cultural property in its own territory as well as in the territory of other States Parties. Third, each State is to refrain from any act directed by way of reprisals against cultural property and from requisitioning movable cultural property situated in the territory of another State Party.166 Strictly, the first obligation does not prevent the use of the cultural property for military purposes as such, but only those which are likely to expose it to destruction or damage. A broad interpretation, however, would suggest that almost all military purposes would expose the cultural property to such dangers. The first obligation might more usually apply to a State with cultural heritage situated within its territory. For example, during the First Gulf War, Iraq fighter planes were positioned near the archaeological site of the Temple of Ur, naturally putting those sites in danger. It also applies to cultural property in another State’s territory during the armed conflict or belligerent occupation. For example, during the Second Gulf War, the US established a military base on the archaeological site of the ancient city of Babylon.167 The second obligation requires the State Party to refrain from any act of hostility against cultural property, including that which has been used by the opposing force in a manner which breaches the first obligation in article 4. States Parties therefore have a primary obligation to refrain from any act of hostility against cultural property situated within their own territory as well as within the territory of other States Parties. This, however, is extended to cases where the other State has breached its primary obligation not to use the property or its immediate surroundings in a manner which is likely to expose it to destruction or damage.

163 164 165 166 167

Article 7(b). O’Keefe (2006) op. cit., p. 120. Article 4(A). Article 4(3)–(4). O’Keefe (2006) op. cit., p. 125.

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While a breach of the first obligation may expose the cultural heritage to danger, a breach of the second almost certainly will. An absolute obligation to refrain from any act of hostility against cultural property that an opposing belligerent has used in contravention of its primary obligation would, however, allow such cultural property to be used as a shield to protect military equipment, personnel or installations. Ameliorating this effect is the inclusion of article 4(2), which provides that the first two obligations ‘may be waived only in cases where military necessity imperatively requires such a waiver’. This is the first article which expressly refers to the doctrine of military necessity in the Convention. Its inclusion was a contentious issue during the drafting of the Convention, and the final compromise text reflects this in its interpretational and practical difficulties.168 For example, while the use of the word ‘only’ in article 4(2) attempts to restrict the invocation of the military necessity exception as a justification for either using cultural heritage in a manner which exposes it to danger, or of attacking such heritage, the text provides little guidance as to when the threshold to invoke military necessity is actually reached.169 Nor is any indication given as to who might determine whether a threshold has been reached. The lack of a definition does not, however, mean that the exception can be raised simply when it is militarily convenient to do so. Whether an act is necessitated by military necessity will require the application of the principle of proportionality.170 As such, should a belligerent have to use cultural property in a manner which exposes it to destruction or damage, such as passing through an historic town or over an historic bridge, there being no other way to pass, or have to act in a hostile manner in relation to that property, the degree of danger or damage to which the cultural property is exposed must be proportionate to the nature of the imperative military objective to be achieved, with the lowest benchmark being that a waiver is imperatively required.171 If this is determined to be the case, it does not then justify the opposing belligerent acting in a manner that might cause damage to the cultural property being used. This too is subject to the application of the principle of proportionality with the same initiation benchmark. The legal advisor to UNESCO at the time of drafting of the Convention considered that article 4(2) should be interpreted as follows: ‘[t]he obligation to respect an item of cultural property remains even if that item is used by the opposing Party for military purposes. The obligation of respect is therefore only withdrawn in the event of

168 Toman, op. cit., pp. 74–81. A proposal to delete any reference to military necessity was rejected by 22 votes against eight, with eight abstentions and eight members being absent at the vote. It is suggested that the Conference then left article 4(2) intentionally vague so that the provision would be flexible enough to accommodate a wide range of military necessities. O’Keefe (2006) op. cit., pp. 121–3. 169 The lack of a definition of ‘military necessity’ was criticised in the Boylan Report, which was to lead to an attempt in the 1999 Protocol to give further meaning to the term. 170 Gardam, op. cit., pp. 8–9. 171 Chamberlain, op. cit., p. 38.

Cultural heritage and armed conflicts 91 military necessity’.172 Indeed, the possibility of relieving one belligerent of its obligation to respect the cultural property if an opposing belligerent had breached the obligation to refrain from using cultural property that would expose it to danger, such as its use for military purposes, was specifically rejected by the Legal Committee of the Conference. There is therefore no requirement of reciprocity in adhering to the Convention’s provisions. The result may then, for example, be the case that one belligerent can justify the use of an historic bridge to transport stores without that necessarily being a justification for the bridge being attacked by the opposing belligerent.173 As to the third negative obligation – that being to refrain from any act directed by way of reprisals against cultural property and from requisitioning movable cultural property situated in the territory of another State Party – no justification on the basis of the requirement of military necessity exists. The obligation is absolute.174 States Parties also have a positive and absolute obligation to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against cultural property. As noted by O’Keefe, this article has taken on a crucial role in the post Second World War conflicts as archaeological sites and museums have become the object of plunder and looting.175 While it is most likely that acts of pillage, theft and vandalism will occur during belligerent occupation, this obligation is not so restricted, and applies to cultural heritage in occupied territories as much as to the territory of the belligerent State itself and the territory of any other State in which another State is engaged in combat. Importantly, this obligation is positive in the sense that it requires the State Party to act, rather than refraining from acting. Some uncertainty has therefore arisen as to the scope of this positive duty. Given that it does apply in occupied territories, it might be supposed that it requires the occupying power to apply article 4(3) to both its forces and to the civilian population and any remnants of the opposing belligerent force.176 However since this provision also applies to combat zones both in a State’s own territory and that of the opposing belligerent State, it is difficult to impose such a positive obligation on that State other than in regard to its own forces. Gerstenblith argues that since the other provisions of article 4 apply only with regard to constraints placed by a State on

172 Toman, op. cit., p. 70. 173 Chamberlain, op. cit., p. 38. 174 Article 4(3) and (4). A lacuna exists in article 4(3) in that it does not prevent the requisitioning by a State of cultural property situated in its own territory but belonging to another State Party. For example, during the Suez crisis in 1956, Egypt requisitioned the French Institute of Oriental Archaeology in Cairo. It has, however, been suggested that such a requisition could be a breach of a State’s duty to protect cultural property on its own territory or amount to a reprisal contrary to article 4(4). Toman, op. cit., p. 71; Chamberlain, op. cit., p. 40. While possible, these would not necessarily apply as the requisition may have occurred in order to provide protection and may not necessarily amount to a reprisal if that belligerent State is the aggressor. 175 O’Keefe (2006) op. cit., p. 132. 176 A position endorsed by O’Keefe. O’Keefe (2006) op. cit., p. 133. Toman remains silent on this issue. Toman, op. cit., pp. 70–71.

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its military, this applies to article 4(3), notwithstanding its literal interpretation. The literal interpretation, it is argued, ought not to be taken since the context of the drafting of the article was the response to the wholesale looting and misappropriation by the Nazi military machine.177 O’Keefe, however, argues that since a State has control over its own forces, and is effectively assimilated with its forces as one entity for the purposes of imposing obligations under the Convention, such a restrictive interpretation could have been achieved by simply requiring a State to refrain from any such activity. As such, by posing the obligation in positive terms the Convention is intended to be applied to entities not directly under the control of the State, such as the civilian pollution of another State and the remanents of the opposing belligerent force.178 The uncertainty over the interpretation of article 4(3) potentially leaves the cultural heritage at the mercy of the local population. Finally, article 4(5) provides that no State Party ‘may evade the obligations incumbent upon it … in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3’. The latter article does not contain any specific measures of safeguard, but leaves the determination of such measures to the State Party in whose territory the cultural property is situated. Should such a State Party take no measures whatsoever in this regard, or take what might be objectively construed as inadequate measures, article 4(5) would not allow other belligerents to evade the primary obligation imposed by the Convention. As such, just because a State in which the cultural heritage is found has failed to provide for its safety at the outbreak of hostilities by, for example, failing to remove or protect valuable cultural heritage, it does not mean that an opposing belligerent can then consider that heritage to fall outside the remit of the Convention. So, for example, any failure on the part of Iraq to undertake adequate measures to protect the cultural property in the Baghdad museum, such as the completion of inventories, or the packaging and evacuation of movable cultural property, in no way affects the obligations of the Coalition forces to respect that cultural property. Importantly, this applies only with regard to the duty to safeguard cultural heritage, and no mention is made of the duty to respect cultural heritage. As such, the question arises as to what duties other belligerents are under should the former State use the cultural heritage in a manner which is likely to expose it to destruction or damage contrary to article 4(1). Some commentators have argued that the use of cultural heritage by a State for military purposes has the effect of removing the cultural heritage from the scope of the Convention, thus allowing the opposing belligerent State to damage or destroy that cultural heritage indiscriminately.179

177 Gerstenblith (2006), op. cit., pp. 309–10. 178 O’Keefe (2006) op. cit., p. 133. 179 Forsyth, for example, has, stating that ‘[t]he Convention is waived if countries do not make efforts to protect their own cultural property’. As such, Forsyth argues, that the stationing of Iraqi aircraft next to the temple of Ur in 1991 during the First Gulf War effectively removed the temple from

Cultural heritage and armed conflicts 93 This is not, however, consistent with the drafting history of the Convention and the very structure of article 4. The specific inclusion of article 4(2) provides that the only justification for acting in a hostile manner against cultural heritage is if ‘military necessity imperatively’ requires it.180 Occupation The destruction, misappropriation and vandalism of cultural property in the occupied territories during the Second World War was a major impetus for the adoption of the 1954 Hague Convention. As such, the Convention addresses a range of issues in relation to the protection of cultural property in occupied territories. As discussed earlier, article 18(2) of the Convention applies ‘to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. The Convention does not, however, define the meaning of ‘occupation’ and relies instead on the accepted customary definition reflected in article 42 of the Hague Regulations, which provides that territory is considered occupied ‘when it is actually placed under the authority of the hostile army’ and that the occupation ‘extends only to the territory where such authority is established and can be exercised’. In cases where such occupation meets with no armed resistance, and so no actual armed conflict exists, the Convention nevertheless applies in full and is not restricted to only those articles which address occupation.181 As such, the duty to respect cultural property as set out in article 4 also applies to cultural property in occupied territories, including the obligation to ‘undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property’. This obligation applies to all forms of occupied territories and extends to activities of the civilian population and the remnants of the opposing belligerent force. This, however, requires some co-ordination with the authorities of the occupied territory. This is addressed in article 5 of the Convention. Article 5(1) provides that ‘[a]ny High Contracting Party in occupation of the whole or part of the territory of another High Contracting Party shall as far as possible support the competent national authorities of the occupied country in safeguarding and preserving its cultural property’. This article is underpinned by a body of customary international law that requires occupying States to leave the existing administrative mechanisms intact and free to continue operating to ensure that the needs of the populace of the occupied territory are met.182 The corollary

the Conventional protective regime and as such, could have legally been bombed. Forsyth, op. cit., pp. 87–91. See also Kastenberg, op. cit., p. 277. 180 Toman, op. cit., p. 70 and O’Keefe (2006) op. cit., p. 125. 181 O’Keefe (2006) op. cit., p. 97. 182 E. Benvenisti, The International Law of Occupation, Princeton: Princeton University Press, 2004, pp. 7–9.

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is that the occupying State cannot divest the national authority of its powers and obligation in respect of safeguarding the cultural heritage. Similarly, this duty of support also requires the occupying State to refrain from any acts that will hamper the national authority in fulfilling its duties. However, while this pre-existing administrative structure is to continue to operate, in many cases of occupation, this may not be possible without the assistance and support of the occupying power.183 This assistance and support requires the occupying State to take positive measures, where appropriate, to safeguard and preserve the cultural property in the occupied territory. The use of the compound activities ‘to safeguard’, and ‘to preserve’ cultural heritage causes some interpretational difficulties. The duty to support the safeguarding of the cultural property in the occupied territory refers to those duties imposed by article 3, such as the drafting of appropriate inventories, plans and provision of materials to protect the property in cases of fire or collapse, etc. However, the duty to support the preservation of the cultural property in the occupied territory is not clearly set out in the Convention. O’Keefe argues that this duty entails supporting those measures which ‘but for the state of belligerent occupation, would be considered peacetime measures’, such as enforcing planning laws and criminal laws which address looting and the illicit trade in cultural property.184 This would be a quite distinct activity to that of safeguarding the cultural property. Toman states that the inclusion of the term ‘safeguarding’ was included in order to prevent an occupying State from taking action prejudicial to the national character of cultural property, which had occurred during the Second World War.185 This would suggest that the term ‘preserve’ ought to be more widely and generally interpreted. Similarly Chamberlain appears to consider the terms ‘safeguarding’ and ‘preservation’ as almost synonymous, stating (with reference to article 5(2)) that ‘the obligation is confined to “preserving” the property concerned. Thus the measures concerned are confined to those that would safeguard cultural property from further damage’.186 Given the failure to specifically define the term ‘preserve’ it should be read in its widest sense in the interests of the cultural property. While the occupying State is obliged to respect the cultural property in the occupied territory by refraining from any acts of hostility in respect of that property and to refrain from any use of that property that would expose it to danger or damage, in accordance with article 4, it does not itself have the duty to safeguard and preserve the cultural property, but only to support, as far as possible, the national

183 For example, in the aftermath of the Second World War, the Office of Military Government for Germany promulgated a Military Government Regulation (Title 18: Monuments, Fine Arts and Archives) requiring it to provide ‘such assistance in the protection of cultural structures as appear appropriate’ to the German authorities. O’Keefe (2006) op. cit., p. 135. 184 Ibid., p. 136. 185 Toman, op. cit., p. 84. O’Keefe cites the German alteration of Warwel Castle in Cracow as an example of the deliberate alteration of a State’s cultural heritage contrary to that State’s national tradition. O’Keefe (2006) op. cit., p. 137. 186 Chamberlain, op. cit., p. 43.

Cultural heritage and armed conflicts 95 authorities in doing so.187 As such, these obligations are not absolute, but limited be the extent that they can, as far as possible, be implemented given the realities of an armed conflict and/or occupation.188 The reality of many cases of belligerent occupation is that the national administrative structure of the occupied territory has, in the wake of the conflict, collapsed, and is incapable of undertaking any activities in relation to safeguarding or preserving the cultural property in that territory. As such, while recognising, in article 5(1), the national administrative authority as the pre-eminent entity in safeguarding and preserving this cultural heritage, the Convention provides, in article 5(2) that: ‘[s]hould it prove necessary to take measures to preserve cultural property situated in occupied territory and damaged by military operations, and should the competent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in close co-operation with such authorities, take the most necessary measures of preservation’.189 This article refers only to the preservation, and not the safeguarding, of the relevant cultural property. As discussed earlier, Chamberlain appears to consider these terms synonymous so that the only activity possibly excluded would be ‘the restoration of the cultural property to the State [sic.] it was in prior to the conflict’.190 O’Keefe also appears to use the term in a wider sense than suggested by the discussion of article 5(1), stating that one of the reasons for the inclusion of this article was the experience in the Second World War of some occupying States wishing to evade any responsibility for the shoring up of cultural property damaged in the course of hostilities, as well as insensitive acts of engineering corps in clearing ‘debris’ which might actually be damaged cultural property.191 This wider interpretation might be a result of the use of ‘preserve’ in conjunction with the phrase ‘and damaged by military operations’. This conjunction results in Chamberlain taking a narrow interpretation of the article’s scope, stating that the ‘measures concerned are confined to those that would safeguard cultural property from further damage’.192 Toman takes a similarly narrow approach to the interpretation of this article, explaining that article 5(2) addresses situations where ‘the national authorities are unable to take the necessary urgent action to preserve damaged

187 For example, the German Kunstschutz provided support to the national authorities of the occupied territories of Netherlands, France, Italy and Belgium in protecting their cultural property. O’Keefe (2006) op. cit., p. 136. 188 This discretion it appears is wider than that granted in article 55 of Geneva Convention IV and article 69 of the Additional Protocol I, which uses the phrase ‘to the fullest extent of the means available’. Toman, op. cit., p. 88. 189 Emphasis added. 190 Chamberlain, op. cit., p. 43. 191 O’Keefe (2006) op. cit., p. 137. 192 Chamberlain, op. cit., p. 43.

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cultural property’.193 So too does O’Keefe, arguing that it imposes a positive obligation ‘to take measures to prevent the deterioration of cultural property damaged in the course of hostilities’.194 As such, O’Keefe concludes that this obligation is one which requires only those measures that are strictly necessary to prevent any deterioration of damaged cultural property, and only in the event that the national authorities are unable to do so.195 These narrow interpretations of this article would suggest that only where the property has actually been damaged can the occupying State take greater measures of preservation. It thus appears to exclude cases where cultural property may be exposed to the danger of damage due to the occupation and require preemptive measures to be taken before it is damaged. This might include, for example, the necessity to take pre-emptive preservation measures to stabilise structures in historic towns that are exposed to danger caused by vibrations from increased military traffic through it. Furthermore, a narrow interpretation of this article has the effect of excluding occupations achieved without any actual armed conflict and therefore no destruction or damage to the cultural property. Whether a wider interpretation of this article can be taken, it is clear that the obligations of the occupying State must be taken in co-operation with the national authorities of the occupied territory. In an attempt to strengthen this co-operation, the occupying State is required to appoint a special representative for cultural property in that territory.196 The final clause of article 5 reflects experiences during the Second World War of armed resistance movements in occupied territories damaging or destroying cultural property in that territory. It provides that any State Party ‘whose government is considered their legitimate government by members of a resistance movement, shall, if possible, draw their attention to the obligation to comply with those provisions of the Convention dealing with respect for cultural property’.197 A narrow interpretation of article 5 as a whole imposes rather vague duties on the occupying State, limited to supporting the protection of cultural property undertaken by the national authorities, and only to the extent possible, leaving a considerable margin of interpretation as to when an occupying State ought to act. The difficulty in this article’s interpretation is exemplified by the question of the

193 Toman, op. cit., p. 85. However, the examples cited by Toman refer to actions undertaken to prevent cultural property being damaged and not to cultural property already damaged during the conflict. For example, to protect the Cathedral in Rouen during fighting in 1940, the occupying German forces destroyed buildings on fire that threatened to spread to the Cathedral. French authorities were simply unable to deal with the emergency. Similarly, in 1943, German authorities, in liaison with the Italian authorities, moved cultural property from areas under threat from the Allied invasion to Rome, where they were considered safer. See Toman, op. cit., p. 88. 194 O’Keefe (2006) op. cit., p. 137. 195 Ibid., p. 138. 196 Article 2(a) of the Regulations for the Execution of the Convention. 197 Article 5(3). For example, the Government of Afghanistan in exile may have been under an obligation to draw this article to the attention of the resistance movement (Northern Alliance).

Cultural heritage and armed conflicts 97 occupying State’s ability to conduct, sponsor or authorise archaeological excavations in the occupied territory.198 The question of whether article 5 addressed this arose from Israel’s authorisation of archaeological digs in the occupied Palestinian Territories, particularly in the West Bank, including Jerusalem.199 Chamberlain considers it axiomatic that since co-operation with the national authority of the occupied territory underpins article 5, this prohibits any archaeological excavations without the national authorities’ consent.200 On the other hand, O’Keefe considers that article 5 does not include such a prohibition.201 While this interpretation of article 5 remains debatable, the position of archaeological excavations was addressed in the Second Protocol to the Hague Convention in 1999. While article 5 provides specific measures that address the protection of cultural property in occupied territories, the obligation of respect set out in article 4 of the Convention applies equally to the occupied territory as it does to any other territory in which armed conflict occurs. As such, the obligation set out in article 4(3) – that being, to refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party and to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against cultural property – applies in occupied territories. So too does the obligation to refrain from any act directed by way of reprisals against cultural property.202 Special protection Whilst recognising the need to protect a range of cultural property during armed conflicts, the drafters of the Convention envisaged a regime that would give some monuments, museums, archaeological sites, refuges containing movable cultural property and other immovable cultural property of very great importance a heightened degree of protection. To this end, Chapter II of the Convention introduced a regime of Special Protection for such property. Essentially the heightened degree of protection for this limited range of cultural property was to be achieved by modifying the obligation to respect cultural property. This was to be achieved by applying a more stringent standard to the obligation to refrain from using cultural property or it’s surrounding for military purposes and to the obligation to refrain from directing any hostile acts against that property.203

198 This was, however, addressed in article 9(1)(b) and (2) of the 1999 Second Protocol to the 1954 Hague Convention. 199 While UNESCO’s 1956 Recommendation on International Principles Applicable to Archaeological Excavations provides, in article 32, that ‘any member State occupying the territory of another State should refrain from carrying out archaeological excavations in the occupied territory’, this is merely a recommendation, with no normative value. 200 Chamberlain, op. cit., p. 43. 201 O’Keefe (2006) op. cit., p. 139. 202 Article 4(4). 203 Article 9.

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The limited number of cultural property to be protected under the Special Protection regime are ‘refuges intended to shelter movable cultural property in the event of armed conflict, of centres containing monuments and other immovable cultural property of very great importance’.204 The use of the phrases ‘limited number’ and ‘of very great importance’ have no specific meaning other than to highlight the selectivity of property to be placed under Special Protection. Movable cultural property is not, however, covered within this narrow range, and is only protected under this regime indirectly by being within registered refuges. Yet, the requirement that the refuges are of very great importance will be dependent on the importance of the movable cultural property contained therein. Similarly, museums themselves – as opposed to their contents – would only be protected to the extent that they are considered refuges for movable cultural property. However, further criteria are applied to this limited range of cultural property in order to qualify for protection under the Special Protection regime. Importantly, the cultural property must not be used for military purposes, which includes, in relation to a centre containing monuments, the movement of military personnel or material, even in transit, through the centre; or its use for activities directly connected with military operations, the stationing of military personnel, or the production of war material.205 Whilst the requirement that they must not be used for military purposes is obvious, more onerous is the requirement that the cultural property be situated at an adequate distance from any large industrial centre or important military objective constituting a vulnerable point (such as an aerodrome, broadcasting station, establishment engaged in work of national defence, a port or railway station of relative importance or a main line of communication).206 While the terms ‘vulnerable point’, ‘military objective’ and ‘large industrial centre’ are unclear and susceptible to different interpretations, the uncertainty as to what is ‘an adequate distance’ has effectively rendered this provision unworkable. A host of States have pointed out that almost all of what might be considered to be cultural property of very great importance in their territories are near some industrial area or conceivable military objective, excluding them from this protection regime.207 The drafters of the Convention appear to have recognised some of these difficulties but, rather than having addressed them directly, have further confused this regime by creating two obscure exceptions. Article 8(2) provides that ‘[a] refuge for movable cultural property may also be placed under special protection, whatever its location, if it is so constructed that, in all probability, it will not be damaged by bombs’. Given the unlikelihood of damage, it appears a rather meaningless

204 Article 8(1). 205 Article 8(3). Article 8(4) excludes from the meaning of military objective ‘[t]he guarding of cultural property by armed custodians, or the presence in the vicinity of such cultural property, of police forces normally responsible for the maintenance of public order’. 206 Article 8(1). 207 See the discussion and examples in O’Keefe (2006) op. cit., pp. 144–6.

Cultural heritage and armed conflicts 99 provision, though it has at least the benefit that that probability will not be tested. It also, perhaps more importantly, means that the host State has heightened obligations not to use that refuge for military purposes. It appears from the limited State practice that States have taken advantage of this by building bomb proof refuges for the movable cultural property within buildings which themselves might qualify as important immovable cultural property, with the protection afforded by article 8(2), in practice, extending to the whole building. The Netherlands, for example, built bomb proof refuges within the Royal Picture Gallery in Mauritshuis.208 The second exception, contained in article 8(5), allows a State to sidestep the requirement of non-proximity to an important military objective, by declaring in peace-time that it will not make ‘use of the objective and particularly, in the case of a port, railway station or aerodrome, to divert all traffic there from’. Poorly worded, the article does not specifically relate the non-use to military uses, nor does it make mention of large industrial areas. Given that the Vatican City is the only property to benefit from article 8(5), and that it is unlikely any others will follow, these interpretational difficulties are of little concern. The final requirement for cultural property to acquire Special Protection is set out in article 8(6), which requires registration in the International Register of Cultural Property under Special Protection. The registration process itself, including the registration and application format, objections to registration, registration itself and cancellation of registration, is governed by articles 11–16 of the Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict.209 While usually it is the State in whose territory the cultural property is situated that will apply for that property to be registered, an occupying power is regarded as competent to request the registration of property in the occupied territory.210 Further provisions address the use of the Blue Shield emblem to designate cultural property under this Special Protection regime.211 While the use of the emblem for cultural property under Special Protection is mandatory during an armed conflict, it need only be placed there at the commencement of hostilities, and its placing before that time is optional. Together the administrative provisions are lengthy, complicated and require considerable effort on the part of any State wishing to have eligible cultural property included on the register. Not surprisingly, few have sought to do so. Special protection and the military necessity exception In granting only a limited range of cultural property an enhanced protection regime, it might be thought that this property of ‘very great importance’ would be

208 209 210 211

O’Keefe (2006) op. cit., p. 151. Which is an integral part of the Convention. Article 13(2) of the Regulations. Articles 10 and 17, and articles 20–21 of the Regulations.

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shielded from the effect of the doctrine of military necessity. This, unfortunately, is not the case. The key obligation in regard to the Special Protection regime, contained in article 9, is to refrain from any act of hostility directed against such property and, from any use of such property or its surroundings for military purposes’. While the obligation to refrain from any act of hostility against cultural property under Special Protection is identical to the obligation in article 4 in relation to cultural property under general protection, the obligation not to use the cultural property or its surroundings for military purposes is differently expressed to that in article 4. Nevertheless, in practice, the use of such property for military purposes will almost always ‘expose it to destruction or damage in the event of armed conflict’.212 As such, the main difference between the obligation in article 4 – for cultural property under general protection – and article 9 – cultural property under Special Protection – is that the latter commences from the time of entry in the International Register, while the former applies ‘during armed conflict’. Article 9 therefore appears to offer little in the way of added protection to cultural property under the Special Protection regime. However, it is with regard to the withdrawal of such immunity, and the use of the concept of military necessity, that the distinction between the general and Special Protection regime is more evident. Article 11(1) provides that: If one of the High Contracting Parties commits, in respect of any item of cultural property under special protection, a violation of the obligations under Article 9, the opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the property concerned. Nevertheless, whenever possible, the latter Party shall first request the cessation of such violation within a reasonable time. While States Parties are under a duty to ensure that the property under Special Protection is not subjected to hostile action or used for military purposes, that immunity need not be honoured for any period during which the opposing belligerent breaches its duties in this regard. The only qualification to this is that the belligerent Party that withdraws immunity should, if possible, first request the ‘violating’ State Party to cease such a violation within a reasonable time. Just what a reasonable time is, and what circumstances make such a request possible, will depend on the situation at hand, and cannot be more clearly articulated in the Convention. The withdrawal of immunity is not, however, absolute, and does not mean that the property is subject to the vicissitudes of military convenience.213 The removal

212 O’Keefe (2006) op. cit., p. 157. 213 For a contrary view, see Forsyth, op. cit., p. 87, who states that ‘[i]f one party attacks the specially protected sites of another party, the attacked party is released from its obligations under the Hague Convention’.

Cultural heritage and armed conflicts 101 of immunity applies to the immunity established under Chapter II of the Convention relating to the regime of Special Protection, and does not remove the property from the Conventional regime entirely. To do so would mean that one belligerent State could disregard the Convention in its entirety if the other belligerent State has breached its Chapter II duties. The effect would be to grant cultural property of very great importance heightened protection which could possibly be withdrawn so as to leave it in even greater danger than cultural property of arguably lesser value. As such, in cases of a breach by a belligerent of its Chapter II duties, the opposing State’s actions would still be constrained by the ‘lower’ threshold of imperative military necessity as applied to cultural property in article 4(2). Article 11(1) thus only has the effect of applying a lower military necessity threshold than that set up in article 11(2) for cultural property under Special Protection. In granting some cultural property a heightened degree of protection, an attempt was made to impose a higher threshold for the invocation of this exception.214 Thus, apart from cases where the opposing party has breached its obligation in respect of the Special Protection regime, a State may withdraw the immunity granted only in ‘exceptional cases of unavoidable military necessity’.215 The Convention not only qualifies this recourse to military necessity by elevating the threshold to cases that are exceptional and unavoidable, but also requires that the decision to invoke the exception can only be made by an officer commanding a force equivalent of a division in size or larger; that, whenever circumstances permit, the opposing belligerent be notified a reasonable time in advance of the decision to withdraw immunity; and that the withdrawal of immunity lasts only as long as is necessary. The Party withdrawing immunity must also inform the Commissioner-General for cultural property in writing of the withdrawal, including reasons, as soon as possible.216 This was intended to allow the reasons to be scrutinised and to act as a disincentive to withdrawing immunity. The emergent higher threshold for invocation of the exception assumes that the use of the terms ‘unavoidable’ and ‘exceptional’ in article 11(2) are easily distinguishable from that of ‘imperative’ in article 4(2). This is questionable, since the terms are neither defined in the Convention nor easily translated into practical military terms.217 The latter is, perhaps, better achieved by the requirement that the decision to invoke a military necessity exception be made by a senior military officer. This might allow for a more informed and considered decision.218 This recourse to the waiver on the grounds of unavoidable military necessity is for the purpose of evading the conditions imposed under the Special Protection regime, and should not be seen as removing the property from the cultural property protection regime altogether. As such, following the removal of immunity for cultural

214 215 216 217 218

Toman, op. cit., pp. 145–6. Article 11(2). Article 11(3). O’Keefe (2006) op. cit., p. 158. Ibid., p. 159.

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property under Special Protection, the ‘lower’ threshold of imperative military necessity should continue to apply.219 The regime of Special Protection has, unfortunately, been an abject failure. Only one centre containing monuments (the Vatican City), and only four refuges for movable cultural property (three in the Netherlands and one in Germany), have been registered.220 A number of reasons for this failure are apparent. First, the criteria for eligibility are too narrow in its scope, and ‘crippingly difficult to satisfy’,221 particularly in the limitation that cultural property must be situated an adequate distance from any large industrial centre or military objective. Second, the use of the military necessity waiver in article 11 was also viewed as a weakening of the protection regime. This article was one of the most controversial provisions of the Convention, and polarised debate during negotiations.222 The desire to achieve the broadest possible ratification of the emerging convention allowed the drafting of the article is a manner that favoured a number of powerful States, such as the UK and US, who subsequently failed to ratify the Convention for more than fifty years after its adoption.223 This contributed to an obscure regime which was subsequently criticised by a number of States. Third, the actual degree of protection achieved is only marginally greater than that provided under the general protection regime, and given the administrative burden in achieving registration, makes it ‘hardly worth the effort’.224 As such, the 1999 Second Protocol attempts to introduce a new regime – that of enhanced protection – in an attempt to address the shortcoming apparent in the Special Protection regime. The international regulatory regime While the Convention sets out the obligations not to use cultural property for military purposes and to refrain from acting in a hostile manner to cultural property – both under the general and Special Protection regime – it sought to do more than simply impose obligations on belligerent States. It sought to introduce a co-ordinated international regulatory regime which would govern the protection of cultural property during an armed conflict. Believing it unlikely that States involved in an armed conflict would be able to regulate the protection of cultural

219 For example, should an officer commanding a division determine that it is an unavoidable military necessity that an historical town centre be occupied, and notifies the opposing belligerent of this, the town centre would lose its status as cultural property under special protection. Nevertheless, when troops enter the town centre, they are under the obligation to respect the cultural property, though, should it become an imperative military necessity to damage some of the property, a lower ranking officer or non-commissioned officer might be able to make such a decision. 220 There had originally been six Dutch refuges, but there were removed at the request of the Dutch government. The single refuge for Austria was also removed at the request of the Austrian government. 221 O’Keefe (2006) op. cit., p. 141. 222 Toman, op. cit., p. 144. 223 O’Keefe (2006) op. cit., p. 142; Boylan, op. cit., p. 56; and Toman, op. cit., p. 145. 224 O’Keefe (2006) op. cit., p. 141; S. Von Schorlemer, ‘Legal Changes in the Regime of the Protection of Cultural Property in Armed Conflict’ (2004) 9 Art Antiquity And Law 43, 49.

Cultural heritage and armed conflicts 103 property during the conflict themselves, particularly given the likely lack of contact between the warring States, three possible international structures were considered. The first would have required UNESCO, as an international organisation, to act as an impartial third party capable of ensuring the protection of cultural property and facilitating co-operation between the belligerent States. This would, however, have prevented States that were not member States of UNESCO from participating in the Convention, and UNESCO was reluctant to take on this role. The second option was to establish a specialist international organisation to give effect to the Convention’s regulatory regime. This, however, was considered too complex and costly.225 The third, and chosen option, was to replicate the concept of the Protecting Power, established in the Geneva Conventions,226 by which each belligerent State utilises the good offices of third States to act on its behalf with regard to certain issues.227 The Protecting Power, however, it to play only one part of the overall regulatory system. A second important element was the creation of a CommissionerGeneral for Cultural Property for each State involved in the armed conflict.228 A complex system was developed for the appointment of the CommissionerGeneral; essentially an expert, chosen from a list of experts held by UNESCO, by the State involved in the armed conflict and the Protecting Power.229 The role of the Commissioner–General centres around the surveillance, investigation and reporting of incidents that the Convention is designed to address.230 Further roles relate to the establishment of improvised refuges under the Special Protection regime231 and the granting of Special Protection to cultural property whilst being transported.232 Each belligerent State’s delegates, Protecting Power’s delegates233 and Commissioner-General, as well as possible experts and inspectors,234 together were to form a system of co-ordinated surveillance and reporting.235 This international regulatory regime has, however, never functioned. As O’Keefe explains: the regime of control provided for is unwieldy and impractical. Its implementation depends on a degree of organisation, bureaucratic formality, agreement between the Parties and, quite simply, time that it is utterly unrealistic

225 226 227 228

229 230 231 232 233 234 235

O’Keefe (2006) op. cit., p. 165. See for example Geneva Convention I articles 8 and 11. Article 21. The only time a Commissioner-General for Cultural Heritage was appointed was in 1967 when a Commissioner-General was appointed for Israel and one for the Arab States. See further O’Keefe (2006) op. cit., pp. 170–2. Articles 1, 2 and 4 of the Regulations. Article 6 of the Regulations. Article 11 of the Regulations. Articles 12–14 of the Convention and Articles 17 and 18 of the Regulations. Articles 3 and 5 of the Regulations. Article 7 of the Regulations. Article 2 of the Regulations.

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Moreover, the concept of appointing a Protecting Power has been regarded by States as ‘cumbersome, an interference in high matters of state and obsolete’237 and have never been instituted in any armed conflict. These problems have also undermined the regime set up to protect the transport of cultural property, governed by Chapter III of the Convention. Designed to provide absolute immunity for the transport of cultural property, allowing it to be moved to refuges and areas not directly affected by armed conflict, the complex system, including the roles of the Commissioner-General in authorising immunity for transport, has rendered it impotent. Whilst the Blue Shield was used on transport engaged in moving cultural property from Angkor to Phnom Penh during the Cambodian conflict in 1972, this was not strictly an implementation of the Convention since it did not apply to that conflict. As such, Chapter III has never formally been implemented.238 The regulatory system has also failed on other matters. Article 26 requires States Parties to forward to the Director-General of UNESCO a report concerning measures being taken, prepared or contemplated by their respective administrations in fulfilment of the Convention and Regulations at least once every four years. The majority of States Parties have simply ignored this obligation.

First Protocol and occupation The First Protocol owes its existence to the concerns raised by the unprecedented scale of the theft, pillage, misappropriation, seizure and systematic export of works of art from the occupied territories during the Second World War.239 As such, a core, positive and absolute obligation, imposed in article 4(3), required States Parties to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against cultural property. Importantly, this duty is not contained in the articles that apply to a belligerent State in occupation, and therefore applies to both a belligerent State in occupation of another State’s territory, and also to a belligerent State over its own territory. As such, it does not specifically address the question of the export of cultural property from occupied territories (though in some situations this could amount to theft). This was dealt with as a separate issue in the First Protocol. Often the transfer of ownership, followed by the export of the property from the occupied territories of Western Europe, was ‘cloaked with a veneer of legality’, prompting an Inter-Allied Declaration that all such transfers would not

236 237 238 239

O’Keefe (2006) op. cit., p. 167. Ibid., p. 166. Ibid., p. 162. See generally Simpson, op. cit.

Cultural heritage and armed conflicts 105 be recognised and would be declared invalid. This applied to all transfers of ownership, including to purchases in good faith and to citizens of all States, including those which were neutral during the conflict.240 After the end of the war, the Final Act of the Paris Conference on Reparations provided that any property that existed or was manufactured in the occupied territories during the occupation which was obtained by force, whether or not payment had been made, would be subject to restitution. A number of States wished to address this issue in the 1954 Hague Convention. These issues do, however, concern fundamental notions of ownership, which differ from one State to another. For example, issues such as the position of the bona fide purchaser, the role and scope of statute of limitations, and the position of the State to regulate ownership issues differs fundamentally between common law jurisdictions and those of the Continent. They are also issues that do not easily fit into an international convention which addresses the obligations of the State. The difficulty of applying private law provisions in the Convention, and the resulting difficulty for some States in ensuring consistency between the implementation of these provisions and their existing national legal systems resulted in an agreement to include the topic in a separate protocol. This would therefore not prevent some States from being able to sign and ratify the Convention. Some confusion, however, exists regarding the effect of a State’s ratification of the Protocol. It has been argued that the Protocol will only apply when the territory of one Party to the Protocol is under the belligerent occupation of another party to the Protocol.241 This, however, is not the approach taken by a number of other commentators, who have argued that the State whose territory is being occupied need not be a party to the Protocol, and that the obligations addressed in the Protocol rest with the occupying State Party to the Protocol.242 The First Protocol provides that each State Party ‘undertakes to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property as defined in Article 1 of the Convention …’.243 Other than the exportation of cultural property to a refuge in accordance with the 1954 Hague Convention, all exports would be prevented, irrespective of ownership. As such, any export, including those of legitimate dealers in that State will be prevented for the duration of the occupation. Illicitly exported cultural material often travels through a number of States before reaching its final destination; some party to the Convention, many not. The First Protocol therefore introduces a valuable provision in imposing on States Parties a duty to take into its custody cultural property imported into its territory either directly or indirectly from any occupied territory.244 There is no time limit

240 Chamberlain, op. cit., p. 136. 241 O’Keefe (2006) op. cit., p. 197. 242 P.J. O’Keefe, ‘The First Protocol to the Hague Convention Fifty Years On’ (2004) IX(2) Art Antiquity and Law 99, 144–6 and 149; Toman, op. cit., p. 344 and Chamberlain, op. cit., p. 145. 243 Article 1, First Protocol. 244 Article 2, First Protocol.

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as to how long ago the property should have been illegally exported or whether it is imported directly from the occupied territory or indirectly, having passed through a number of transit States. Since a number of States do not necessarily police the illegal import of illicit cultural property at their customs barrier, the State Party may give effect to this obligation automatically upon the importation of the property or, failing this, at the request of the authorities of that territory. The ‘authorities of that territory’, which may be either the occupying State’s authorities or the post-occupation authorities, need not request specific items, but a particular category of property, such as, for example, cylinder seals or cultural property owned by the Baghdad Museum prior to its plunder. The uncertainty as to whether the occupying State and occupied State need to be party to the Protocol to impose obligations on the occupying State have further implications here. It has been argued that to be effective, all three States – that is the occupied State, the occupying State and the seizing State – need to be parties to the Protocol.245 Chamberlain, on the other hand, has argued that neither the occupying State, nor the occupied State need be a party to the Protocol for a seizing State to apply this provision.246 The latter view would certainly be more favourable to the protection of cultural property from illicit export. Should any cultural property have been exported to the territory of the occupying State, or to any other State Party, in contravention of this provision, that State must return the property to the competent authority of the State previously occupied at the close of hostilities.247 Importantly, under no circumstances can such property be retained as war reparations. In many cases, an occupation may continue after the close of hostilities, and the occupying State may have had to fulfil the duties of the competent authority during the subsequent occupation. The difficulty with this literal interpretation is that the cultural property will then be returned to the very occupying State’s administration that allowed the cultural property to be exported in the first place. The use of the phrase ‘previously occupied’ should be used to qualify the phrase ‘close of hostilities’ so that the return occurs after the end of occupation rather than the cessation of the armed conflict itself.248 As such, in the case of Iraq, this would have occurred in June 2004 following the replacement of the Coalition Provisional Authority by the Interim Government of Iraq.249 Unfortunately this does not necessarily address all occupations. For example, in circumstances similar to those that exist in Cyprus, where the occupation of northern Cyprus by Turkey has now lasted longer than thirty years, the State Party with the duty to return the cultural property to the

245 O’Keefe (2006) op. cit., p. 198. 246 Chamberlain, op. cit., p. 145. 247 Article 3, First Protocol. For example, during the conflict between Israel and Egypt in 1967, Israel undertook salvage excavation of sites in the Sinai Peninsular. In 1994, Israel returned the excavated material to Egypt in accordance with the First Protocol. Chamberlain, op. cit., p. 146. 248 Chamberlain, op. cit., p. 146. 249 A. Roberts, ‘The End of Occupation: Iraq 2004’ (2005) 54 International and Comparative law Quarterly 27.

Cultural heritage and armed conflicts 107 occupied territory will not do so until the occupation has ended – which may be a considerable time.250 The State seizing the cultural property has an obligation to return it to the previously occupied State, and not to the previous owners of the property. This approach reflects the circumstances that followed the Second World War, where it would be most difficult for the sending State to determine who the legitimate owners of the property might be.251 It is then for the competent authority of the previously occupied State to determine the individuals entitled to the property. The application of the Protocol would necessitate the seizure and return of all cultural property exported from the occupied territory; the exportation resulting from the occupying State’s dereliction of the duty to prevent such exportation. It may be that a State Party has had to seize the cultural property from one of its citizens and return it to the competent authorities of the previously occupied State even if the cultural property was bought by a bona fide purchaser. The Protocol therefore provides that the innocent bona fide purchaser should be indemnified by the defaulting occupying State.252 The previously occupied State does not have to pay any compensation, nor does the State Party that returns the property receive any compensation for the costs of the seizure or return. The payment of compensation is a matter between the occupying State and bona fide purchaser, and is not a prerequisite for the State Party seizing the cultural property to return it.253 While this structure promotes the return of cultural property to occupied territories, it certainly raises numerous legal issues that many States would find difficulties with, particularly the status of the bona fide purchaser. Aside from issues such as the determination of when a person acts bona fide, the calculation of the indemnity to be paid, and the possibility of implying limitation periods, a conflict may also arise in relation to States’ human rights obligations in relation to the seizure of property without compensation from the seizing State. As Chamberlain points out, Article 1 of the First Protocol to the European Convention on Human Rights requires that no person be deprived of his possession, except in the public interest and subject to the conditions provided for by law and the general principles of international law. Should a State Party seize cultural property from a bona fide purchaser and return it to the previously occupied State, the compensation need not come from the seizing State, and if the bona fide purchaser is unable to procure the compensation from the occupying State, the seizing State may have breached the European Convention.254 During armed conflict, both international and internal, an appropriate protective measure in respect of movable cultural property could be to send it to a third

250 251 252 253 254

O’Keefe (2006) op. cit., p. 199. P.J. O’Keefe (2004) op. cit., pp. 105–8. Article 4, First Protocol. Cf. article 7(b)(ii) UNESCO Convention. See Chapter 4. Chamberlain, op. cit., p. 47.

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State for safekeeping.255 When this has occurred between State Parties, the Protocol simply requires that the cultural property be returned to the competent authorities of the State from where it came.256 The Protocol does not require that the receiving State has actually agreed to safeguard the property, and it is conceivable that the property is deposited in the receiving State without its knowledge. Nevertheless, the receiving State would have an obligation to return it, and no compensation for the costs of such a return is required. The duty to return the cultural property is absolute, and would prevent the case where, after the conflict has ended, the competent authorities of the sending State are not politically acceptable to the State that is to return the property.257 This arose, for example, when the US Governments refused to return the crown of St. Stephen to Hungary after the Second World War whilst under communist control. This risk arises in particular where the conflict is of an internal nature and the faction sending the material is not ultimately the governing authority of the State. Exactly how the occupying State implements the Protocol is a matter for that State, though, given article 43 of the Hague Regulations, the occupying State would ordinarily rely on any existing national legislation of the occupied State to give effect to these obligations. Where this is insufficient, the occupying State would need to implement appropriate measures. Since the export ban is absolute, it may go beyond that provided for by the existing occupied State’s legislation.258 Unfortunately few States had taken the necessary steps to implement the provisions of the protocol in their national laws. The Netherlands, for example, having failed to do so, was unable to seize and return four icons illicitly exported from the Turkish occupied North Cyprus.259

The 1977 Additional Protocols to the Geneva Conventions In 1974 a conference was convened in Geneva to consider updating the four Geneva Conventions adopted in 1949. This was achieved in 1977 with the adoption of two protocols to the Geneva Conventions, the first addressing the protection of victims of international armed conflicts, and the second applying mostly the same provisions to non-international armed conflicts.260 Importantly, the Additional Protocols not only provided new provisions relating to civilian

255 For example, the collection of the Prado was evacuated from Madrid and sent to Geneva for safekeeping during the Spanish Civil War, and retuned in 1939. See P.J. O’Keefe (2004) op. cit., p. 111. 256 Article 5, First Protocol. 257 P.J. O’Keefe (2004) op. cit., p. 112. 258 P.J. O’Keefe (2004) op. cit., p. 101. 259 The Autocephalous Greek Orthodox Church in Cyprus v. William O.A. Lans, District Court of Rotterdam, Case n.44053. See P.J. O’Keefe (2004) op. cit., p. 110. 260 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I); and Protocol Additional to

Cultural heritage and armed conflicts 109 property, which would include cultural property, but also provided specific provisions relating directly to cultural property. Article 52, relating to the protection of civilian property in general, provides that such property ‘shall not be the object of attack or reprisals’.261 Furthermore, it provides that attacks ‘shall be limited strictly to military objectives’.262 However, this does mean that all civilian property will not be attacked since the article defines a military objective as those ‘which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’263 and then concludes that civilian objects ‘are all objects which are not military objectives’.264 As such, civilian property, which includes cultural property, will not be saved by the prohibition against attack if it qualifies as a military objective. This reflects the military necessity exception which already existed and is reflected in article 27 of the Hague Regulations and in article 4 of the 1954 Hague Convention.265 This was, however, considered to be a more exacting formula than that used in the 1954 Hague Convention, and was to be incorporated into the Second Protocol in 1999. Additional Protocol I also provides, in article 53, for specific protection of ‘cultural objects and of places of worship’. It reads: Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: a To commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; b To use such objects in support of the military effort; c To make such objects the object of reprisals. Given the reference to the 1954 Hague Convention, this article simply captures the essential obligation of that Convention, leaving it to the Convention to give substance to its provision. Despite the article being headed ‘cultural objects and of places of worship’, it applies to cultural property as defined in the 1954 Hague Convention.266 Article 53 is essentially repeated, albeit in an abbreviated form, in

261 262 263 264 265 266

the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II). Schindler and Toman, op. cit., p. 711. Article 52(1) Additional Protocol I. Article 52(2) Additional Protocol I. Article 52(2) Additional Protocol I. Article 52(1) Additional Protocol I. O’Keefe (2006) op. cit., p. 205. O’Keefe (2006) op. cit., pp. 209–14.

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Additional Protocol II. It simply applies the protective regime established in article 53 to cultural property in non-international conflicts.267 Noticeable is the lack of a reference to a military necessity exception. However, since article 53 is without prejudice to the 1954 Hague Convention, it does allow States Parties to invoke the military necessity allowed for by article 4(2) of the 1954 Hague Convention if that State is a party to both the 1954 Hague Convention and Additional Protocol I. Furthermore, since cultural property is also a subset of the property protected by article 52 of Additional Protocol I, its provision relating to such property being defined as ‘military objectives’, and liable to attack, will also apply. However, this only applies to attacks, so that the use of such property in support of military effort is not subject to article 52; though it will continue to be subject to the 1954 Hague Convention for States Parties to both the 1954 Hague Convention and Additional Protocol I. Whilst the 1977 Additional Protocols did address the protection of cultural property, their importance is much greater in that many of the more general provisions of the protocols were to form the basis for a revised protection regime for cultural property embodied in the 1999 Second Protocol to the 1954 Hague Convention.

The 1999 Second Protocol Following the destruction of cultural property during the conflicts in Iran, Iraq and Kuwait and amidst the destruction in the former Yugoslavia, it became evident that the Convention, together with the 1949 Geneva Conventions and its Additional Protocols, did not provide a sufficiently rigorous and broadly acceptable protection regime for cultural heritage. Following the completion of an independent expert’s report on the Convention and its implementation,268 UNESCO began the process which would eventually lead to the adoption, in 1999, of the Second Protocol.269 The Second Protocol acts as a supplement to the existing Convention,270 building upon the existing conventional regime in the most part, though essentially replacing the special protection regime with a new regime, called enhanced protection.271 As a supplementary regime, it is only open to States that are party to the

267 Article 16 of Additional Protocol II states: ‘Without prejudice to the provisions of The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort’. 268 Boylan, op. cit. 269 Adopted on 26 March 1999, it came into force on 9 March 2004, three months after the twentieth instrument of ratification. 270 Article 2, 1999 Second Protocol. 271 Article 4 provides a specific mechanism by which Enhanced Protection will replace the regime of Special protection as between parties to the 1999 Second Protocol in cases where heritage has been granted both Special and Enhanced protection.

Cultural heritage and armed conflicts 111 1954 Hague Convention, or ratify or accede to both the 1954 Hague Convention and the Second Protocol at the same time.272 Whilst introducing the enhanced protection regime for cultural property of ‘greatest importance to humanity’, the Protocol also clarifies the peacetime duties of States, particularly with regard to dissemination of information about the Convention; and while not acting on the Boylan recommendation of eliminating the military necessity exception,273 it did make a number of amendments to the general protection provisions in an attempt to give further body to the concept of military necessity, in particular by taking into account developments in international humanitarian laws in the form of the 1977 Additional Protocols.274 Furthermore, a new international institutional framework was introduced, together with a detailed regime on penal sanctions for breaches of the Convention. The cultural heritage subject to the Second Protocol remains the same as that set out in the Convention itself.275 While this definition had been criticised as being imprecise,276 it was still regarded as generally acceptable to States during the negotiating process of the Second Protocol.277 Finally, the scope of the Protocol extends to both international and noninternational armed conflicts.278 While the term ‘armed conflict not of an international character’ is not defined in the 1954 Hague Convention, or in the Geneva Conventions, the Protocol’s wide application is only limited by a declaration in the Second Protocol as to what could not be included in the term, being ‘situations of internal disturbance and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’.279 The Second Protocol also clarifies the situation where a number of States are involved in an armed conflict, not all of whom are party to the Convention or its Protocols. For example, at the time of the Second Gulf War, neither the US nor UK were party to the 1954 Hague Convention while other States that made up the Coalition, such as Poland and Australia, were. The 1954 Hague Convention adopts, to a large extent, the solution contained in the Geneva Conventions, providing, in article 18(3), that ‘[i]if one of the Powers in conflict is not a Party to the present Convention, the Powers which are parties thereto shall nevertheless remain bound by it in their mutual relations. They shall furthermore be bound by

272 Article 1(d), 1999 Second Protocol. 273 Boylan, op. cit., p. 57. 274 The need to update the 1954 Hague Convention so as to conform to evolving international humanitarian laws was reflected in the 1999 Second Protocol’s Fourth recital: ‘[c]onsidering that the rules governing the protection of cultural property in the event of armed conflict should reflect developments in international law’. 275 Article 1(b), 1999 Second Protocol. 276 Boylan, op. cit., p. 143. 277 O’Keefe (2006) op. cit., p. 248. 278 Articles 3 and 22, 1999 Second Protocol. 279 This limitation is derived from the 1977 Additional Protocol II. See O’Keefe (2006) op. cit., pp. 246–7.

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the Convention, in relation to the said Power, if the latter has declared that it accepts the provisions thereof and so long as it applies them’. The necessity to formally declare itself to be bound by the Convention differentiates this clause from that adopted in the Geneva Conventions, which simply requires that the State ‘accepts and applies the provisions thereof’.280 Tacit acceptance by applying the rules of the Geneva Conventions would suffice. Rather than following the wording of the 1954 Hague Convention, the Second Protocol reverts to wording similar to that in the Geneva Convention. This is a welcome reversal in approach as it makes it easier to apply the rules of the Second Protocol as a non-State Party need only apply the rules, without formal acceptance, for the Protocol to apply as between those States. General provisions regarding protection Amongst the obligations imposed on State Parties to the Protocol are to take a number of peacetime measures to safeguard the cultural property, including ‘the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property’, and ‘in regard to cultural property under enhanced protection, to ensure that there are adequate domestic legal and administrative measures recognising its exceptional cultural and historic value and ensuring the highest level of protection’. Furthermore, article 30 requires States to disseminate the Protocol not only in the military but also ‘to their entire population’. The general obligation to safeguard cultural heritage in times of peace, set out in article 3 of the Convention, is supplemented by article 5 of the Second Protocol. It sets out a number of peacetime measures which ought to be taken, such as ‘the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property’. These measures are not exhaustive, and are merely indicative, and given the difficulties some States, particularly developing States, might have in undertaking these measures, they are not mandatory, but are to be instituted ‘as appropriate’ for each State Party. Nevertheless, where appropriate, a State Party should implement such measures, and a failure to do so may contribute to the extent of damage caused during the armed conflict. So, for example, it appears that the Baghdad museum had unfortunately not made adequate inventories of the museums holdings, which contributed to the difficulties in ascertaining the extent of the looting of the museum and subsequent difficulties in

280 Toman, op. cit., pp. 199–201.

Cultural heritage and armed conflicts 113 identifying the provenance of items later found on the intentional art and antiquities market.281 The Second Protocol further strengthens those provisions relating to the dissemination of information on the Convention and the incorporation of its provisions in military training and operations by providing that not only should States Parties ‘disseminate this Protocol as widely as possible, both in time of peace and in time of armed conflict’ but also that ‘any military or civilian authorities who, in time of armed conflict, assume responsibilities with respect to the application of the Protocol should be fully acquainted with the text thereof ’. To this end the Parties shall, inter alia, incorporate guidelines and instructions in their military regulations and develop and implement, in cooperation with UNESCO and relevant governmental and non-governmental organisations, peacetime training and educational programmes.282 Whilst article 5 strengthens the safeguarding of cultural property, article 6 of the Second Protocol adds to that set out in article 4 of the Convention regarding respect for cultural property. In particular, article 6(a) of the Second Protocol attempts to clarify the circumstances in which a State can invoke the exception of imperative military necessity in order to act in a hostile manner against cultural property, contained in article 4(2). The use of the military necessity waiver was viewed by some States as weakening the protection regime, particularly as those States that had campaigned for its inclusion during the Conference subsequently failed to ratify the Convention.283 This was noted in the 1993 Boylan report, which recommended that States Parties should waive the military necessity exemption altogether.284 A number of States, however, opposed this, and the final compromise was to retain the exception, but to attempt to give it greater clarity. Article 6 then provides that a waiver on the basis of imperative military necessity may only be invoked to direct an act of hostility against cultural property when and for as long as: ‘(i) that cultural property has, by its function, been made into a military objective; and (ii) there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective’.285 The two conditions to article 6 are cumulative. The term ‘military objective’, key to the first condition in article 6, was derived from article 52(2) of the 1977 Additional Protocol I. It is defined to mean ‘an object which by its nature, location, purpose, or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite

281 282 283 284

See Cruickshank and Vincent, op. cit., pp. 148–50. Article 30, 1999 Second Protocol. Particularly the US and UK. Boylan, op. cit., p. 57. Boylan, op. cit., p. 57. Similarly, in 1996, the Final Communiqué on Cultural Heritage Protection in Wartime and in State of Emergency adopted by a NATO Partnership for Peace Conference recommended a review of the use of the term and a clarification as to when it might be invoked. See Von Schorlemer, op. cit., p. 50. 285 Article 6(a), 1999 Second Protocol.

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military advantage’.286 That is, if, by its function, cultural property has been made into a military objective, by which it is meant that it makes a contribution to military action by its location, nature, purpose or use, and its destruction may have a military advantage, and there is no feasible alternative to achieve this military advantage, then the action will be deemed to be one of imperative military necessity and justified.287 Some variance in its interpretation was intentionally allowed, it being a compromise text, so that it is possible, by concentrating on the word ‘function’, to effectively limit the application of the military necessity exception only to cultural property which has by its ‘use’ become a military objective.288 A great deal of our cultural property derives from past military activity, and the nature and purpose of an old fort, for example, would not make it a military objective unless it was currently being used for military purposes. Similarly, its location should be immaterial unless it is being used for military purposes. As such, the use of the term military objective should be narrowly construed.289 It would thus exclude that which only by its location, nature or purpose becomes a military objective.290 For example, the nature of the HMS Victory (built in 1760 and an important historic ship), as a commissioned warship of the British navy would not mean that it is in use for a military objective, and therefore to be protected under the Protocol. The second condition requires that no feasible alternative is available ‘to obtain a similar military advantage to that offered by directing an act of hostility against that objective’. This, it has been argued, effectively eliminates military necessity from consideration as it will ‘virtually never be invoked to justify an attack on cultural property, as there are almost always alternatives to circumvent the property’.291 The fact that the term of reference is a ‘military advantage’ rather than ‘necessity’, may, however, allow for an interpretation that justifies an attack in circumstances which undermine the previous interpretation of the term imperative military necessity. As such, it has been argued this has only served to legitimate the invocation of the military necessity exception by introducing notions such as military advantage into the balance between the interest of military necessity and protection of the cultural property.292 In relation to the use of cultural property for military purposes which is likely to expose it to destruction or damage a waiver may only be invoked when, and for as long as, no choice is possible between such use of the cultural property and another

286 287 288 289 290

Article 1(f ), 1999 Second Protocol. Articles 1(f ) and 6(a), 1999 Second Protocol read together. O’Keefe (2006) op. cit., p. 255; Keane, op. cit., p. 32. See Chamberlain, op. cit., p. 184. See also O’Keefe, op. cit., p. 254. See, however, the Canadian Statement of Understanding annexed to its instrument of accession to the 1999 Second Protocol, para. 6, which states: ‘It is the understanding of the Government of Canada that under Article 6(a)(i), cultural property can be made into a military objective because of its nature, location, purpose or use’. 291 Chamberlain, supra note 123, at 184. 292 For a more detailed explanation see Forrest, op. cit., p. 214.

Cultural heritage and armed conflicts 115 feasible method for obtaining a similar military advantage.293 Unlike the case where a State Party wishes to act in a hostile manner towards cultural property, this waiver is not dependent on any prior action of the other belligerent. This, it has been argued, rules out ‘a permissive construction of the notion of imperative military necessity’.294 However, it has also been argued that the use of the term advantage may allow for an interpretation which allows the use of cultural property when it quite simply achieves a ‘military advantage’, rather than when an imperative military necessity requires it.295 Article 6 introduces two further criteria which are meant to limit the invocation of the exception of military necessity. First, a decision to invoke the exception shall only be taken by an officer commanding a force the equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise.296 It has been argued that this introduces a level of objectivity in that senior officers are expected to act more objectively than more junior officers.297 Given that this allows for decisions to be made which take into account the overall military advantage of acting in a hostile manner, rather than having to do so because of an immediate threat, such ‘objectivity’ may provide little protection. Second, article 6(d) further provides that an advance warning should be given of an attack against cultural property when circumstances permit.298 As the military advantage to be gained has taken ascendancy, it is likely that an advance warning will detract from this advantage, and it is likely that it will be considered that the circumstances for such an advance warning do not exist. While articles 5 and 6 of the Second Protocol complement and build upon the obligations created in articles 3 and 4, the Second Protocol adds further obligations that are intended to enhance the protection of the cultural property, embodied in articles 7, 8 and 9. Article 7 sets out a number of obligations which are intended to act as precautions against the damage and destruction of cultural property when one belligerent plans to attack another. Article 7(a) requires that the attacking State ‘do everything feasible to verify that the objectives to be attacked are not cultural property protected under article 4 of the Convention’. This would, for example, include consulting lists of protected cultural heritage for the area or seeking information from the local population. The attacking State is also required to ‘take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental damage to cultural property protected under article 4 of the Convention’299 and to ‘refrain from deciding to launch any attack which may be expected to cause incidental damage to cultural property protected under article 4 of the Convention

293 294 295 296 297 298 299

Article 6(b), 1999 Second Protocol. O’Keefe, op. cit., p. 256. Forrest, op. cit., p. 214. Article 6(c), 1999 Second Protocol. Chamberlain, op. cit., p. 186; O’Brian, op. cit., p. 154. Article 6(d), 1999 Second Protocol. Based on article 57(2)(c), 1977 Additional Protocol I. Article 7(b), 1999 Second Protocol. Based on article 57(2)(a)(ii), 1977 Additional Protocol I.

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which would be excessive in relation to the concrete and direct military advantage anticipated’.300 This puts the balancing of any hostile act against cultural property and the military advantage in perspective, and has been regarded as one of the most important articles in the Second Protocol.301 Again, much depends of how the term military advantage is to be interpreted, and how it relates to imperative military necessity. Finally, article 7(d) provides that a State Party shall cancel or suspend an attack if it becomes apparent: ‘(i) that the objective is cultural property protected under article 4 of the Convention; or (ii) that the attack may be expected to cause incidental damage to cultural property protected under article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated’.302 In addressing the duties of State to safeguard cultural property against hostilities, in article 8, a State Party should, to the maximum extent feasible, remove movable cultural property from the vicinity of military objectives or provide for adequate in situ protection and should also avoid locating military objects near cultural property.303 The final additional obligation in relation to the regime of general protection is embodied in article 9 and further develops the protective role of an occupying State. Importantly, it requires each occupying State to ‘prohibit and prevent in relation to the occupied territory, any illicit export, other removal or transfer of ownership of cultural property’.304 The term ‘illicit’ is defined in the Second Protocol to mean and export, removal or transfer ‘under compulsion or otherwise in violation of the applicable rules of the domestic law of the occupied territory or of international law’.305 Furthermore, an occupying State ‘shall prohibit and prevent in relation to the occupied territory: any archaeological excavation, save where this is strictly required to safeguard, record or preserve cultural property’.306 The concern over archaeological excavations was directly due to Israel’s sponsorship of archaeological excavations in the occupied Palestinian territories of the West Bank and East Jerusalem.307 Furthermore, an occupying State ‘shall prohibit and prevent in relation to the occupied territory ... any alteration to, or change of use of, cultural property which is intended to conceal or destroy cultural, historical or scientific evidence’.308 For example, the part of the Mosque of Ibrahim at the Cave of the Patriarchs in Hebron was converted to a synagogue after Israeli occupation.309

300 301 302 303 304 305 306 307 308 309

Article 7(c), 1999 Second Protocol. Based on article 57(2)(a)(iii), 1977 Additional Protocol I. O’Keefe, op. cit., p. 258. Based on article 57(2)(b), 1977 Additional Protocol I. Article 8, 1999 Second Protocol. Based on article 58(a)–(b), 1977 Additional Protocol I. Article 9(1)(a), 1999 Second protocol. Article 1(g), 1999 Second Protocol. Article 9(1)(b), 1999 Second Protocol. O’Keefe, op. cit., p. 261. Article 9(1)(c), 1999 Second Protocol. O’Keefe, op. cit., p. 262.

Cultural heritage and armed conflicts 117 This provision recognises that not only might cultural property be destroyed in order to psychologically damage the opposing belligerent, or as a form of ‘ethnic cleansing’ to remove any manifestation of a particular culture or peoples, but that another, more subtle way of achieving these ends could be the alteration or change of the use of the cultural heritage. If any of these activities are required, such as an emergency archaeological excavation, it is to be ‘carried out in close co-operation with the competent national authorities of the occupied territory’ unless circumstances do not permit.310 The latter reservation confirms the military necessity waiver granted in the 1954 Hague Convention. The enhanced protection regime The Second Protocol introduces the concept of cultural property under enhanced protection. The recognition that the special protection regime established in the Convention was largely unworkable and that a new regime was required was central to the purpose of drafting a second protocol, and its importance is reflected in the first recital to the Second Protocol. It declares that State Parties have entered into the Second Protocol ‘[c]onscious of the need to improve the protection of cultural property in the event of armed conflict and to establish an enhanced system of protection for specifically designated cultural property’. To be protected under the enhanced protection regime, the cultural property must meet three conditions: a it is cultural heritage of the greatest importance for humanity; b it is protected by adequate domestic legal and administrative measures recognising its exceptional cultural and historic value and ensuring the highest level of protection; c it is not used for military purposes or to shield military sites and a declaration has been made by the Party which has control over the cultural property, confirming that it will not be so used.311 As to whether cultural property to be included is indeed ‘of the greatest importance for humanity’ is obviously difficult to determine, and is left to the Committee for the Protection of Cultural Property is the Event of Armed Conflict.312 Importantly, what might be included is not limited to immovable cultural property (as was the case under the special protection regime), and includes movables, such as the contents of a museum. The second condition is also rather difficult to implement given the uncertainty as to what might be ‘adequate’ domestic legal and administrative measures. This is particularly the case when considering developing States’ ability to give effect to

310 Article 9(2), 1999 Second Protocol. 311 Article 10(c), 1999 Second Protocol. 312 See below.

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this condition. A number of measures were therefore introduced to assist developing States in this regard, including an ability to seek assistance from both UNESCO and the Committee for the Protection of Cultural Property in the Event of Armed Conflict, as well as access to funds from the Fund for the Protection of Cultural Property in the Event of Armed Conflict.313 Finally, the third condition reiterates that set out in articles 8(1)(b) and 8(5) of the Convention, but extending the requirement that the State Party not use the cultural property for military purposes, and that a declaration to that effect be made, to times of peace as well as to times of armed conflict.314 Importantly, there is no requirement, as there is for special protection, that the cultural property be situated an adequate distance from military objectives. It is this simple change from the special protection regime which promises to make the enhanced protection regime a more successful protective measure. The list of cultural property under enhanced protection Central to the enhanced protection regime is the establishment of the Committee for the Protection of Cultural Property in the Event of Armed Conflict.315 The committee is made up of twelve States Parties which shall be elected by the Meeting of the States Parties, taking into account the need to ensure an equitable representation of the different regions and cultures of the world. Whilst each State Party elected as a member of the Committee may choose their own representatives, the chosen representatives ‘must be persons qualified in the fields of cultural property, defence or international law’. Furthermore, in choosing their representatives, the States Parties must ‘endeavour, in consultation with one another, to ensure that the Committee as a whole contains adequate expertise in all these fields’.316 The committee is to meet once a year in ordinary session and in extraordinary sessions whenever it deems it necessary.317 One of the functions of the committee is to ‘grant, suspend or cancel enhanced protection for cultural property and to establish, maintain and promote the List of Cultural Property under Enhanced Protection’.318 The granting of enhanced protection and the drafting of the list is set out in article 11 which, in order to ensure the maximum coverage of cultural property of the greatest importance to humankind, adopts a number of approaches for nominations to the List. To encourage States to consider nominating sites, States are invited to submit a tentative list of cultural property which it intends to nominate for enhanced protection, thus

313 314 315 316

See below on measures introduced to assist developing States. O’Keefe, op. cit., p. 268. Article 24, 1999 Second Protocol. Article 24(4), 1999 Second Protocol. The committee’s terms of office and rules of procedure are governed by articles 25 and 26, 1999 Second Protocol. 317 Article 24(2), 1999 Second Protocol. 318 Article 27(1)(b), 1999 Second Protocol.

Cultural heritage and armed conflicts 119 allowing the Committee to consider a wide range of potential properties.319 Furthermore, possible nominations are encouraged by other States Parties, the International Committee of the Blue Shield and other non-governmental organisations with relevant expertise. Nevertheless, it is only the State Party, in whose territory the cultural property is situated, or which is an occupying power and the cultural property is in the occupied territory, that can actually nominate cultural property for inclusion on the List, so in cases where another State or nongovernmental organisations had suggested a possible nomination, which the Committee concurs with, the Committee will invite the relevant State to make a nomination in that regard.320 As such, the Committee can take an active role in encouraging nominations, as can non-governmental organisations such as the International Committee of the Blue Shield. With an actual request to include cultural property on the List, the Committee will circulate the nomination to all States Parties, allowing other States to submit representations regarding the request. The decision to grant or deny enhanced protection will take such representations into account, but the decision itself ‘may only be made on the basis of the criteria mentioned in Article 10’, with the exception that where developing States cannot meet the requirement that adequate domestic legal and administrative measures be in place, that State has sought international assistance under article 32. Whilst these procedures are designed to include cultural property on the List in times of peace, an expedited procedure is also set out for the inclusion of cultural property in times of armed conflict. Provisional enhanced protection may be granted after a State Party request following a process of obtaining representations from other States Parties to the conflict (rather than all States Parties).321 Enhanced protection and military necessity The use of the waiver of immunity on grounds of unavoidable military necessity in relation to cultural property under special protection in the Convention was unsatisfactory, primarily because it was difficult to distinguish this attempt at constructing a higher threshold to that implied by imperative military necessity. While the term military necessity does not actually appear within the articles dealing with enhanced protection, the concept is imbedded in the resulting regime which allows an opposing belligerent State to ignore the status of enhanced protection. The form it takes, however, is to prescribe the circumstances when cultural property under enhanced protection can be attacked rather than leaving this to a State Party under the guise of military necessity, and by cancelling or suspending the enhanced protection so as to allow the invocation of military necessity as a waiver

319 Article 11(1), 1999 Second Protocol. 320 Article 11(3), 1999 Second Protocol. 321 Article 11(9), 1999 Second Protocol.

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to the ordinary obligations.322 It also narrows the scope of such a removal of immunity by linking it to the other belligerent State’s breach of its duties under the Protocol, which the waiver of immunity of cultural property under special protection did not necessarily require.323 Central to the enhanced protection regime is article 12, which provides that, upon being added to the list of cultural property under enhanced protection, States Parties to a conflict shall ensure the immunity of such property by refraining from making it the object of attack or from any use of the property or its immediate surroundings in support of military action.324 Whilst this article sets out a clear and unequivocal prohibition on the use of such property in support of military action or attacking property under enhanced protection, the Second Protocol then goes on to provide exceptions to the rule. As such, this protective regime is not absolute, as the doctrine of military necessity is applicable as provision is made in the Protocol for the loss of this immunity. Nevertheless, an attempt was made to restrict the circumstances when this might occur, though this has, unfortunately, lead to some convoluted drafting. Article 13 sets out the only circumstances when cultural property under enhanced protection will lose its immunity under the enhanced protection regime. It provides that such immunity will be lost ‘if, and for as long as, the property has, by its use, become a military objective’.325 Importantly, this article does limit the definition of a military objective only to its use, rather than its nature, location, purpose or use,326 thus narrowing the circumstances in which it might be attacked. While the cultural property that has, by its use, become a military objective, will have lost its enhanced protection, it will not then be subject to unregulated attack. Article 13(2) provides for a set of criteria a State Party would have to comply with should it wish to attack such cultural property. These are: that the attack is the only feasible means of terminating such use of the property; that all feasible precautions are taken in the choice of means and methods of attack, with a view to terminating such use and avoiding, or in any event minimising damage to the cultural property; and that, unless circumstances do not permit due to requirements of immediate self-defence, the attack is ordered at the highest operational level of command, effective advance warning is issued to the opposing forces requiring the termination of such use of the cultural property, and reasonable time is given to the opposing forces to redress the situation’.327 While cultural property under enhanced protection will lose its enhanced protective status under the conditions discussed above, the second circumstance in which the enhanced protection immunity might be lost is if ‘such protection is

322 323 324 325 326 327

Article 13, 1999 Second Protocol. Article 13(a), 1999 Second Protocol compared with article 11(2) 1954 Hague Convention. Article 12, 1999 Second Protocol. Article 13(1)(b), 1999 Second Protocol. As defined in article 1(f), 1999 Second Protocol. Article 13(2), 1999 Second Protocol.

Cultural heritage and armed conflicts 121 suspended or cancelled in accordance with Article 14’. The latter provides that such protection is lost when the ‘cultural property no longer meets any one of the criteria in Article 10 of this Protocol’, in which case the Committee may suspend its enhanced protection status or cancel that status by removing that cultural property from the List. While the cultural property under enhanced protection may lose its status because it fails the first two criteria set out in article 10; that is it is no longer ‘of the greatest importance for humanity’ or is not protected by ‘adequate domestic legal and administrative measures’; the most likely criteria to have been lost is the prohibition of its use ‘for military purposes or to shield military sites’. Furthermore, article 14(2) provides that: in the case of a serious violation of Article 12 in relation to cultural property under enhanced protection arising from its use in support of military action, the Committee may suspend its enhanced protection status. Where such violations are continuous, the Committee may exceptionally cancel the enhanced protection status by removing the cultural property from the List. Unfortunately, at this point of determining the consequences of a breach of these obligations, the Protocol becomes rather convoluted. Article 14(1) provides that should cultural property no longer meet the criteria of not being used for ‘military purposes or to shield military sites’, the enhanced protection status may be suspended or cancelled. Article 14(2) then provides that a similar fate will follow in the case of a serious violation of the duty not to use the cultural property under enhanced protection in support of ‘military action’.328 A difficulty arises in reconciling the terms ‘for military purposes’ and ‘in support of military action’, neither of which is defined in the Protocol, since in the former case a breach will lead to cancellation or suspension while in the latter case only a serious violation will have such an affect.329 Chamberlain contends that there is ‘probably no substantive difference’ between these obligations.330 If so, then there must correspondingly be no difference between ‘a serious violation’ and the inability of the State to meet the criteria for enhanced protection because of its use of the cultural property ‘for military purposes’. The consequence of a cancellation or suspension is that the cultural property will lose its enhanced protection, and then be subject to the ordinary rules to respect cultural property and the possibility of waving these rules on the grounds of military necessity as provided for in article 6.331

328 This article follows the obligation in article 53(b) of 1977 Additional Protocol I, which uses the phrase ‘in support of military effort’. However, as Chamberlain notes, the phrase ‘in support of military action’ is arguably a narrower phrase, requiring a higher degree of association between the use of the cultural property and the actual military activity. Chamberlain, op. cit., p. 123, at 201. See also O’Keefe, op. cit., p. 272. 329 Article 14(1) compared with article 14(2), 1999 Second Protocol. 330 Chamberlain, op. cit., p. 201. 331 Chamberlain, op. cit., p. 202.

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Penal sanctions While it is within the remit of each State to adopt criminal laws in respect of acts against cultural property within its jurisdiction, attempts had been made to require, in international conventions, for State Parties to ensure that such penal sanctions are instituted. At the conclusion of the First World War, the Commission on Responsibilities of the Preliminary Peace Conference of Paris produced a draft list of war crimes that reflected the customary international law of the time, which included the ‘wanton destruction of religious, charitable, educational and historic buildings and monuments’. Unfortunately, the political forces of the day prevented any trials taking place.332 Another attempt was made in 1938 when the League of Nations Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War included a provision that required States to punish any persons looting or damaging monuments or works of art in times of war.333 Regretfully, the outbreak of the Second World War prevented any further progress and the Convention never entered into force. However, when, at the end of the war, the Military Tribunal at Nuremberg was convened, the Tribunal’s list of war crimes included ‘plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’.334 Importantly, the Tribunal regarded this as reflecting the customary law of war, and which was also reflected in articles 46 and 56 of the 1907 Hague Regulations. On this basis Alfred Rosenberg was found guilty of war crimes, and subsequently sentenced to death. These developments were also reflected in the 1954 Hague Convention, which included a provision on penal sanctions in article 28, providing that: The High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention. This article was intentionally worded in very general terms so as to allow each State Party to give effect to the provision in a manner consistent with its own laws. As such, issues such as the mental element required (intention, wilful disregard, etc.), the act itself (commission, conspiracy, attempt, etc.) and the penalties to be imposed are left to each State. Importantly, each State Party is to take action against any relevant person irrespective of their nationality. While this may usually extend to non-nationals who have committed a breach within the territory of

332 O’Keefe, op. cit., pp. 43–4. 333 Article 3(3). 334 Article 6. Schindler and Toman, op. cit., p. 1253.

Cultural heritage and armed conflicts 123 the prosecuting State, it also includes universal jurisdictional competence – that is, the ability to prosecute any relevant person, irrespective of their nationality and irrespective of where the breach of the Convention occurred. Article 28, does not compel a State Party to exercise universal jurisdiction, but does permit it.335 By 1999, no State Party had prosecuted anyone for a criminal breach of the Convention. Nevertheless, there were substantial advancements in the development of international criminal law and the establishment of international criminal tribunals. Importantly, in 1993, the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) recognised, as a war crime, the ‘seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’.336 On this basis, for example, the Tribunal found the commanders of the attack on the Old Town of Dubrovnik guilty of perpetrating a war crime.337 Similarly, the 1998 Statutes of the International Criminal Court (ICC) provides, in article 8(2)(b)(ix), that ‘[i]ntentionally 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’, constitutes a war crime.338 These provisions were regarded as reflecting the customary international law at the time of their drafting.339 In light of these developments in international criminal law, article 28 of the 1954 Hague Convention was largely regarded as being too general and therefore ineffective. As such, the development of a new penal regime in the Second Protocol was a key objective during negotiations.340 Chapter 4 of the Second Protocol,

335 O’Keefe, op. cit., p. 192. Compare Toman, op. cit., p. 294 (who argues that article 28 compels the exercise of universal jurisdiction). 336 Article 3(d). Prosecutions under article 3(d) include Prosecutor v. Blaškic´ IT-95-14-T, Judgment, 3 March 2000; Prosecutor v. Plavšic´ IT-00-39&40/1, Judgment, 27 February 2003; Prosecutor v. Naletilic´ and Nartinovic´ IT-98-33-T, Judgment, 31 March 2003; Prosecutor v. Struger IT-01-42-T, Judgment, 31 January 2005; Prosecutor v. Jokic´ IT-01-42/1-S, Judgment, 18 March 2004; Prosecutor v. Brdanin IT-99-36-PT, 9 December 2003. 337 Prosecutor v. Jokic´ IT-01-42/1-S, Judgment, 18 March and Prosecutor v. Struger IT-01-42-T, Judgment, 31 January 2005. 338 Article 8(2)(e)(iv) repeats this provision in relation to conflicts not of an international character. Importantly, these articles are repeated in the Statute of the Iraqi Special Tribunal as articles 13(b)(10) and 13(d)(4). 339 T. Meron, ‘The Protection of Cultural Property in the Event of Armed Conflict within the Case-law of the International tribunal for the Former Yugoslavia’ (2005) 57(4) Museum International 41, 43. 340 Many of the articles in Chapter 4, particularly articles 17–20, reflect developments and similar provisions contained in international criminal law conventions, including the 1977 Additional Protocols and the conventions establishing a number of international criminal tribunals, such as the ICTY, ICC and International Criminal Tribunal for Rwanda (ICTR).

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entitled ‘Criminal responsibility and jurisdiction’ has, as its cornerstone, a list of ‘serious violations’, set out in article 15. It states: Any person commits an offence within the meaning of this Protocol if that person intentionally and in violation of the Convention or this Protocol commits any of the following acts: a making cultural property under enhanced protection the object of attack; b using cultural property under enhanced protection or its immediate surroundings in support of military action; c extensive destruction or appropriation of cultural property protected under the Convention and this Protocol; d making cultural property protected under the Convention and this Protocol the object of attack; e theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention. An important condition for the determination that an offence has been committed is that the relevant person intentionally breaches the Convention. Unintentional acts will therefore not be regarded as a serious violation. An offence is committed when one of five acts are done in violation of the Convention or this Protocol. Article 15 therefore covers not only the provisions of the Protocol, but also those of the Convention for States Parties to the Protocol. Of the five acts listed, the first two relate to enhanced protection. The first act, that of making cultural property under enhanced protection the object of attack, is not in itself a violation of the Protocol. Only those attacks which cannot be justified by article 13 of the Protocol will be regarded as a serious violation. The second act, that of using cultural property under enhanced protection or its immediate surroundings in support of military action, amounts to a contravention of article 12 of the Protocol, and since no exception is allowed for, it is, in itself, a violation of the Protocol. The last three acts are not restricted to cultural property under enhanced protection, and therefore apply to cultural property under general protection in both the Convention and the Protocol as well as cultural property under special or enhanced protection. Article 15(1)(d) refers to attacking cultural property protected under the Convention, whilst article 15(1)(c) refers to extensive damage or appropriation of cultural property protected under the Convention. Together these two provisions will address a number of articles in the Convention and Protocol, particularly acts which contravene article 4 of the Convention and article 6 of the Protocol relating to the respect for cultural property.341

341 O’Keefe, op. cit., p. 278.

Cultural heritage and armed conflicts 125 The final act addressed in article 15 relates directly to article 4(3) of the Convention, making ‘theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention’, an offence. The fundamental obligation of State Parties to make these acts criminal offences, punishable by appropriate offences, is set out in article 15(2). While the exact mechanism for making these acts criminal offences is left to each State, article 15(2) adds that this should be done so as to ‘comply with general principles of law and international law’. This rather general condition is clarified by an example in that article 15(2) concludes that this includes ‘the rules extending individual criminal responsibility to persons other than those who directly commit the act’. In light of the development of international criminal law, this extends criminal responsibility not only to those who actually commit the act or attempt to commit the act, but also to those who order or induce the commission or attempted commission of the act.342 The reference to ‘general principles of law and international law’ might also clarify the penalties that may be imposed for a criminal offence. Within the developing international criminal law, it has been argued that the only appropriate penalty for a criminal offence that is essentially a war crime is imprisonment.343 Whilst article 15 addresses serious violations of the Convention and Protocol, article 21 also requires State Parties to adopt such legislative, administrative or disciplinary measures as may be necessary to suppress ‘other violations’ of the Convention and Protocol. These ‘other violations’ are ‘any use of cultural property in violation of the Convention or this Protocol’ and ‘any illicit export, other removal or transfer of ownership of cultural property from occupied territory in violation of the Convention or this Protocol’ when committed intentionally. Whilst article 15 requires State Parties to make the acts set out therein criminal offences, article 16 sets out the jurisdictional competencies for each State. It requires each State Party to exercise jurisdiction when ‘the offence is committed in the territory of that State’ so that persons of any nationality will be subject to the territorial jurisdiction of the State Party. It also requires States Parties to exercise jurisdiction over its nationals, so that even if the offence was committed in another State, the State of nationality must give effect to article 15. Jurisdictional competency on the basis of universality is also provided for, but only in relation to offences set out in article 15(1)(a)–(c). That is, in the case where the alleged offender is present in the territory of a State Party (not being the State in which the act was committed and the alleged offender being a foreign national) the State Party must exercise its jurisdictional competence. Articles 17 and 18 then address more specifically such cases, requiring the State Party to either prosecute the alleged offender, or to extradite the offender to the State in which the offence occurred or to the State of which the alleged offender is a national. It includes a number of safeguards for the alleged offender, requiring, in the case where the State decides

342 Ibid., pp. 281–2. 343 Ibid., p. 281.

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to prosecute, that it submit the case to its competent authorities without undue delay, that the offender be guaranteed fair treatment and a fair trial, and that the prosecution be conducted in accordance with its domestic law or with, if applicable, the relevant rules of international law. States jealously guard their jurisdictional competency. Universal jurisdictional competency is also evolving and more usually restricted to grave breaches of international criminal law. Article 16(2) therefore takes the precautionary measure of ensuring that nothing in article 16(1) prejudices the existing jurisdictional competencies exercised under national or international law. Similarly, article 22(4) ensures that, in relation to armed conflicts not of an international character, the jurisdictional competency of the State Party is whose jurisdiction the conflict occurs is maintained and respected. Given that various jurisdictional competencies can be exercised by different States, article 19 requires States Parties to ‘afford one another the greatest measure of assistance in connection with investigations or criminal or extradition proceedings brought in respect of the offences set forth in article 15, including assistance in obtaining evidence at their disposal necessary for the proceedings’. In order to ensure that a refusal to extradite an alleged offender, or a refusal to assist the prosecuting State, does not make use of the ‘political offence exception’, article 20 clarifies that the offences set out in article 15 are not political offences, nor offences connected with political offences, nor offences inspired by political motives. New institutional arrangements The regulatory system established in the Convention was regarded, by the 1990s, as overly complex and cumbersome. As such, Chapter 6 of the Protocol introduces new institutional arrangements, including the establishment of the Committee for the Protection of Cultural Property in the Event of Armed Conflict.344 The UNESCO Secretariat was also charged with assisting the Committee and implementing its decisions.345 The new regime also provides for regular biennial meetings of the State Parties at the same time as the UNESCO General Conference, or as necessary.346 Conscious of the difficulty developing States might have in introducing measures to give effect to the Second Protocol, the Fund for the Protection of Cultural Property in the Event of Armed Conflict was established.347 The Fund is to be used ‘to provide financial or other assistance in relation to emergency, provisional or other measures to be taken in order to protect cultural property during periods of armed conflict or of immediate recovery after the end of

344 345 346 347

Article 24, 1999 Second Protocol. Article 28, 1999 Second Protocol. Article 23, 1999 Second Protocol. Article 29(1)(a), 1999 Second Protocol.

Cultural heritage and armed conflicts 127 hostilities’.348 Contributions to the Fund are essentially voluntary, to come from contributions made by the States Parties and contributions, gifts or bequests made by other States, UNESCO or other organisations of the United Nations system, other intergovernmental or non-governmental organisations, and public or private bodies or individuals. Further sources of funding include any interest accruing on the Fund, funds raised by collections and receipts from events organised for the benefit of the Fund, and all other resources authorised by the guidelines applicable to the Fund.349

The protection of cultural property during armed conflict and customary international law A number of States involved in recent armed conflicts were not party to the 1954 Hague Convention or its Protocols at the time of the conflict. As such, a determination of the customary international law applicable to the protection of cultural property during the conflict provides the only international legal basis for its protection. The Hague Conventions of 1899 and 1907 were declared to be ‘recognised by all civilised nations and were regarded as being declaratory of the laws and customs of war’ by the Nuremberg International Military Tribunal after the Second World War.350 Thus, while narrow in scope, the protective provision relating to cultural property in articles 27 and 56 reflects a basic customary international law. Similarly, the 1949 Geneva Conventions and their Additional Protocols have also been recognised as reflecting customary international law and therefore binding upon all States. As such, for example, article 52 of Additional Protocol I, which provides protection for civilian property subject to the extent to which that property has become a military objective, includes cultural property. The same naturally applies to article 53.351 The activities of the ICTY have gone some way in clarifying this customary international law protecting cultural property during armed conflict, though this is still evolving. The exercise of the ICTY’s jurisdiction, as set out in its Statute, extends to breaches of the Geneva Conventions of 1949 and the Additional Protocols of 1977, crimes against humanity and violations of the customary international law of war.352 The latter is important to the protection of cultural property as the judgements of the Tribunal reflect the customary international law of war at the time of the alleged commission of the war crime. Many of the prosecutions in the ICTY only indirectly applied to cultural property in that the prosecutions were for either damage to civilian property in general or, perhaps

348 349 350 351 352

Article 29(1)(b), 1999 Second Protocol. Article 29(4), 1999 Second Protocol Toman, op. cit., n. 1, 10 and 78; Phuong, op. cit., p. 986. O’Keefe casts some doubt in this regard. O’Keefe, op. cit., pp. 320–6. Prosecutor v. Blaškic´ IT-95-14-T, Judgment, 3 March 2000, para 170.

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more importantly, for the crime of persecution of a people on the grounds of race, religion or politics.353 That is, the destruction of religious institutions, which might also have historical value for example, was considered an indirect persecution of the individuals who associated with these institutions’.354 The Statute of the ICTY did, however, recognise cultural property as part of a bundle of properties and institutions directly protected by customary international law. Article 3(d) of the Statute recognised, as a war crime, the ‘seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’.355 This wording is substantially similar to that of articles 27 and 56 of the Hague Regulations; being generally regarded as reflecting customary international law.356 As such, the judgements reveal something about the nature of this war crime and the conditions for conviction. In the conviction of Croatian General Timohir Blaškic´ for, amongst other crimes, the destruction of religious institutions in a number of towns in the Lašva Valley in Bosnia-Herzegovina, the Tribunal declared that in order to succeed in a conviction under article 3(d) ‘the damage or destruction must have been committed intentionally to institutions which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts’.357 Furthermore, the Tribunal concluded that ‘the institutions must not have been in the immediate vicinity of military objectives’.358 However, in Prosecutor v. Naletilic´ and Nartinovic´ the Tribunal found that while the cultural property must not have been used for military purposes at the time in order for the accused to be found guilty, there was no requirement that the cultural property need be located outside the immediate vicinity of the military objective.359 The latter point was reiterated in Prosecutor v. Struger.360 The reasoning of the Tribunal in this regard is not, however, without criticism.361

353 H. Abtahi, ‘The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal of the Former Yugoslavia’ (2001) 14 Harvard Human Rights Journal 1, 13. 354 Meron, op. cit., p. 46. See Prosecutor v. Blaškic´ IT-95-14-T, Judgment, 3 March 2000; also Prosecutor v. Kordic´ and Cˇerkez IT-95-14/2-T, Judgment, 26 February 2001; Prosecutor v. Kordic´ and Cˇerkez IT-5-14/2-A, Appeal Judgment, 17; Prosecutor v. Stakic´ IT-97-24-T, Judgment, 31 July 2003. 355 Prosecutions under article 3(d) include Prosecutor v. Blaškic´ IT-95-14-T, Judgment, 3 March 2000; Prosecutor v. Plavšic´ IT-00-39&40/1, Judgment, 27 February 2003; Prosecutor v. Naletilic´ and Nartinovic´ IT-98-33-T, Judgment, 31 March 2003; Prosecutor v. Struger IT-01-42-T, Judgment, 31 January 2005; Prosecutor v. Jokic´ IT-01-42/1-S, Judgment, 18 March 2004; Prosecutor v. Brdanin IT-99-36-PT, 9 December 2003. 356 Meron, op. cit., p. 43. 357 Prosecutor v. Blaškic´ IT-95-14-T, Judgment, 3 March 2000, para 185. 358 Prosecutor v. Blaškic´ IT-95-14-T, Judgment, 3 March 2000, para 185. 359 Prosecutor v. Naletilic´ and Nartinovic´ IT-98-33-T, Judgment, 31 March 2003, para 604. See Meron, op. cit., p. 41. 360 Prosecutor v. Struger IT-01-42-T, Judgment, 31 January 2005, para 310. 361 O’Keefe, op. cit., p. 321.

Cultural heritage and armed conflicts 129 In Prosecutor v. Struger 362 the Tribunal held that the conviction of Pavle Struger in relation to the operational command of the shelling of the Old Town of Dubrovnik was based on articles 51 and 52 of Additional Protocol I and article 13 of Additional Protocol II. Essentially these provisions were found to have codified the customary international law at the time of their drafting.363 Furthermore, in considering the source of the customary international law that underpins the Tribunals’ Statute, the Tribunal considered the 1954 Hague Convention, as well as the 1977 Additional Protocols.364 As such, the Tribunal concluded in Prosecutor v. Duško Tadic´ 365 that article 19 of the 1954 Hague Convention reflected customary international law.366 Nevertheless, considerable disagreement exists as to whether the 1954 Hague Convention or its Protocols (or any of their provisions) reflected customary international law at the time of their drafting, nor the extent to which subsequent State practice and opionio juris has developed customary international law that reflects the 1954 Hague Convention’s provisions. While some commentators simply conclude that the 1954 Hague Convention does not reflect any customary international law,367 a number concede that the Convention is ‘a reflection of customary international law’ but that it ‘has never risen per se to the level of customary international law’.368 Meyer, for example, concludes that ‘some aspects of the 1954 Hague Convention have reached customary international law status’ by which he means the principles of the Convention rather than necessarily the Convention’s precise provisions.369 Some precise provisions may, however, either have reflected customary international law at the time of drafting the Convention, or have developed since 1954 to now reflect customary international law. It is argued, for example, that article 4(3) of the Convention reflected customary international law in 1954, having evolved from article 43 of the 1907 Hague Regulations,370 while article 19 has been regarded by the ICTY, in Prosecutor v. Duško Tadic´,371 as having been incorporated into the customary international law of war.372

362 363 364 365 366 367 368

369 370 371 372

Prosecutor v. Struger IT-01-42-T, Judgment, 31 January 2005. Prosecutor v. Pavle Struger et al. IT-01-42-PT, 7 July 2002, paras 17–19. Prosecutor v. Struger IT-01-42-T, Judgment, 31 January 2005, para 307. Prosecutor v. Duško Tadic´ IT-94-1-AR72, 2 October 1995. See also See D. Keane, ‘The Failure to Protect Cultural Property in Wartime’ (2005)14 De Paul Journal of Arts and Entertainment 1, 21. Kastenberg, op. cit., p. 297. See Toman, op. cit., p. 203, stating that ‘many of the general provisions of the Hague Convention form part of customary international law’; Von Schoremer, op. cit., p. 45 stating that ‘some of its basic principles have become part of customary international law’; and O’Connell, op. cit., p. 327 stating that ‘much of the 1954 Convention is binding as customary international law’. Some commentators, however, appear to regard all the provisions of the Convention as reflecting customary international law. See Boylan, op. cit., p. 7 and Chamberlain, op. cit., pp. 24 and 69; Forsyth, op. cit., pp. 88–9. Meyer, op. cit., pp. 351 and 356. Phuong, op. cit., p. 986. Prosecutor v. Duško Tadic´ IT-94-1-AR72, 2 October 1995. See also Keane, op. cit., p. 21.

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Other commentators, such as Gerstenblith, conclude that the Convention as a whole has attained the status of customary international law.373 Perhaps the most comprehensive consideration of this issue is that undertaken by O’Keefe. In a considered review, O’Keefe concludes that a number of articles of the 1954 Convention and its Protocols may reflect customary international law. Some articles, such as article 4(3) of the Convention374 and article 6(a) of the Second Protocol,375 are considered as reflecting customary international law, while others, particularly in their application to conflicts of a non-international character, are less clear. That the basic principles of the 1954 Hague Convention reflect customary international law is evident in the adoption of these principles in the 1977 Additional Protocols I and II. Article 53 of Additional Protocol I simply prohibits acts of hostility towards historic monuments, works of art, or places of worship that constitute the cultural or spiritual property of peoples, use of such objects in support of military efforts, or reprisals against such objects.376 Further, a resolution adopted on the last day of the Conference recognised the importance of the 1954 Hague Convention in the protection of cultural property, considered it to be compatible with the Additional Protocols adopted, and urged States that had not done so to become parties to it.377 While it is therefore not entirely clear as to whether the conventional norms reflect customary international law, there is at least considerable agreement that the underlying principles of the Convention do. While it is not altogether clear to what extent the provisions of the Convention and its Protocols applied to States such as the US and UK during the Second Gulf War, it is clear that they exert a moral pressure on such States, and the international reaction and indignation that has followed acts such as the damage and looting of the Baghdad museum and use of archaeological sites as military bases, such as that at Babylon, have caused reassessment of the actions of the military in relation to cultural property.

Conclusion The protection of cultural property during times of war has slowly developed from a time when its destruction and plunder was the right of the victor to a time where ‘malicious destruction and plunder by armed forces and flagrant disregard for the wartime fate of cultural property have been exceptions’ rather than the norm.378 Building upon the Hague Regulations of 1899 and 1907 and the Geneva

373 374 375 376 377 378

Gerstenblith (2006) op. cit., p. 304. O’Keefe, op. cit., p. 334. Ibid., p. 326. Article 16 of Additional Protocol II provides a substantially similar provision. Meyer, op. cit., p. 362. O’Keefe (2006) op. cit., p. 1.

Cultural heritage and armed conflicts 131 Conventions, the 1954 Hague Convention and its Protocols have played a central role in this changing perception. Yet, for all these advances, cultural heritage is still subject to damage and destruction in armed conflicts. Recently, for example, Muslim Azerbaijani troops were observed bulldozing an ancient Armenian cemetery in Yerevan,379 while concerns have been expressed concerning armed clashes between Cambodia and Thai forces near the World Heritage listed Preah Vihear temple.380 The conflict between Russia and Georgia in 2008 has resulted in claims by both sides that their historic buildings and cultural sites were damaged during the armed conflict.381 The continued conflict in archaeological rich States such as Iraq, Afghanistan and in the Levant, particularly in the Palestinian territories, continues to destroy and damage the manifestations of our shared collective past. Whilst the normative content of the Convention has been criticised as being vague and imprecise,382 it has been argued that the major problem with the 1954 Hague Convention and its Protocols is ‘achieving greater recognition, acceptance and application’.383 Whilst some improvement might be made to the content of this conventional regime,384 the lessons learnt in Iraq and the Balkans, and the US ratification of the 1954 Hague Convention and the UK’s indication that it too will ratify the Convention,385 promise to improve the protection of cultural heritage during armed conflicts.

379 Stone and Bajjaly, op. cit., p. XI. 380 UNESCO PRESS, Release No. 2008–99, 16 October 2008. 381 J. Varola, ‘Georgia and Russia rattle their sabres over war damage’, The Art Newspaper, November 2008, p. 5. 382 E.A. Posner,‘The International Protection of Cultural Property: Some Skeptical Observations’ (2007) 8 Chicago Journal of International Law 213, 218. 383 Boylan, op. cit., p. 7. 384 See Gerstenblith’s proposal in Gerstenblith (2006) op. cit., pp. 335–51. 385 Ibid., p. 341.

4

The return, restitution and repatriation of movable cultural heritage

Introduction As old as war itself, cultural heritage has moved from the defeated to the victor as a ‘spoil of war’. It may very well have been the very reason for waging war. This movement of cultural heritage from one culture to another may not only have preserved the cultural heritage of the defeated, but also have embodied new values; those of the victors. This is particularly so when, instead of returning to their lands with the spoils of war, the victors have remained in the land of the defeated. In many cases this has had the effect of creating an ongoing appropriation of the cultural heritage of the defeated peoples. With the expansion of empires in the age of discovery, from Spanish conquistadors to the global British Empire, the cultural heritage of the conquered and colonised has been at the mercy of the imperialist. Whether used as a symbol of victory, or to oppress, or merely for its economic value, the cultural heritage has moved from land to land. A rather different threat emerged in the eighteenth and nineteenth centuries with the development of an interest in collecting antiquities. This collecting phenomenon grew rapidly during periods of foreign occupation as empires expanded and then dwindled, displacing vast amounts of cultural heritage. The more recent period of colonial expansion evinced further significant displacement of cultural heritage to the powerful colonial nations of Europe from the colonies of Africa, Asia and the Middle-East. This collecting phenomenon was undertaken both by State entities and private individuals, and resulted in significant quantities of objects entering the art and antiquities markets of colonial States. At the same time, from this collecting phenomena emerged the scientific discipline of archaeology. While collecting antiquities and archaeology may have had similar origins, their paths have diverged dramatically. Collectors usually view objects purely from an aesthetic perspective, and value the object itself, for its qualities of form, design and beauty. Archaeologists, on the other hand, seek to reconstruct and understand the past through a scientific excavation and examination of objects and their physical context. Primacy is given to the information gained from this scientific examination rather than from the object itself.1

1 C. Renfrew, Loot, Legitimacy and Ownership, London: Duckworth, 2000, p. 19.

The return, restitution and repatriation of movable cultural heritage 133 With the collapse of empires and the process of decolonisation, many newly independent States have sought to recover much of the cultural heritage that had been lost, and have taken steps to prevent any further loss. For many States that had lost a significant proportion of their cultural heritage during foreign occupation, the protection regime implemented to stop further losses often included vesting ownership of all cultural heritage in the State and making private ownership, unregulated excavation and export of any such heritage, illegal. Such steps, however, have necessarily meant a reduction on the flow of material into the existing art and antiquities market that fed the needs of collectors, as well as many cultural institutions such as museums and university collections. This has resulted in the emergence of a significant illicit trade in cultural heritage. The art and antiquities market is essentially an international market, with the supply of cultural heritage coming from some States and demand emanating from others. Addressing this illicit aspect of this trade necessitates an international response. This has taken the form of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. These Conventions seek to address the conflicting perspectives taken between the different States in the market. These differences lie not only in the very history of each State, but also in the way each State has sought to protect its history. The use of legal norms to protect this history is as old as that of history itself and its development and content has coloured the manner in which today’s international law seeks to regulate the movement of cultural heritage. The history of the protection of movable cultural heritage The development of legal measures to protect cultural heritage is as varied as the subjective interpretations of cultural heritage itself. As was evident in Chapter 3, laws have long existed to protect cultural heritage, particularly temples, churches and similarly sacred and hallowed places during times of war. This was extended in times of peace to the protection of religious institutions as well as monuments and ruins of ancient times. The protection of movable cultural heritage, particularly that obtained from excavations, developed with the emergence of antiquarianism and the subsequent development of the scientific enquiry of archaeology.2 The States of Europe, with their wealth of monuments and archaeological sites, were the first to provide specific legislation protecting cultural heritage. Greece adopted legislation in 1832, Italy in 1872 and France in 1887.3 Beginning with the collecting activities of antiquarians, and the subsequent activities of archaeologists in collecting samples and artefacts, a great deal of cultural material was also recovered in Africa and Asia, most of which was taken back

2 L. Prott and P.J. O’Keefe, Law and the Cultural Heritage: Volume 1 Discovery and Excavation, Abingdon: Professional Books Ltd, 1984, p. 31. 3 Ibid., pp. 34–8.

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to Europe. Many of the States most affected by these earliest collecting activities introduced early and stringent legislation which, in particular, made illegal the export of much of that State’s cultural heritage. Turkey adopted legislation in 1874 which included a prohibition on export of cultural heritage, as did Egypt by 1879. This also culminated in the establishment of a number of museums in cultural heritage rich States. In Egypt, the National Museum was established in 1835, followed by the Turkish Museum of Antiquities in 1847.4 With many archaeologically rich States under colonial rule, protective legislation developed later. By the early 1900s, however, many British colonies had some form of protective legislation, including Iraq in 1924, Palestine (today’s Israel and Jordan) in 1929 and India in 1932. Other archaeologically rich States also emerged from Ottoman rule with protective legislation, including Lebanon in 1933, while Iran developed its protective legislation in 1930. Many other States, however, would have to await the decolonisation process before being able to legislatively protect their cultural heritage. That international co-operation and co-ordination was necessary to give effect to the protective regimes being established in many States, and to address the growing illicit component of the art and antiquities market, was recognised in the League of Nations. In 1933, the League’s Office International des Musées prepared a draft Convention on the Repatriation of Objects of Artistic, Historical or Scientific Interest, Which Have Been Lost, Stolen or Unlawfully Alienated or Exported. Unfortunately, this draft proved unworkable since it did not distinguish between private and public cultural heritage, and many States were only willing to provide a protective regime for public heritage. A further attempt to provide a protective regime for public heritage was drafted in the form of the Convention for the Protection of National Historic Artistic Treasures. While this would essentially protect public cultural heritage, States could opt in to provide a protective regime for privately owned cultural heritage. A number of States, including the Netherlands, Sweden, the US and UK, still had reservations about such a regime, given their active art and antiquities markets. Whilst negotiations were still underway, the outbreak of the Second World War ended this initiative, but which ultimately proved the need for such an international convention.5 Following the adoption of the 1954 Hague Convention, which addressed in part the looting, pillaging and restitution of cultural heritage during war, and in particular in occupied territories, UNESCO turned its attention to the peacetime illicit trade in cultural heritage. In 1956, it adopted a Recommendation on International Principles Applicable to Archaeological Excavations. Whilst not binding on States, it provided a number of recommendations which were to take normative form in the 1970 Convention. It included, for example, recommendations that States take measures to prevent clandestine excavations and export of

4 Ibid., p. 44 5 P.J. O’Keefe, Commentary on the 1970 UNESCO Conventions, 2nd edn, Builth Wells: Institute of Art and Law, 2007, p. 4.

The return, restitution and repatriation of movable cultural heritage 135 archaeological material, and that museums ensure that any artefacts offered to them were not procured by illicit means. The recommendation was important in providing States with a principled basis upon which they could construct national legislative measures to address the illicit trade. By the early 1960s a number of States were already experiencing considerable problems with illicit excavations and export of their cultural heritage, particularly Mexico and Peru. The need for a Convention was clearly recognised, but so too were the many difficulties that would need to be overcome, especially given the very different approaches taken by different States to the problem, and the differences in the underlying legal structures within which a convention would be implemented. Conscious of the need to take immediate action, UNESCO adopted the Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property in 1964. It acted to encourage States to consider implementing national laws to address the problem and to introduce international principles which might ultimately be contained in a future Convention.6 Over the course of the next six years, expert meetings and State negotiations at UNESCO finally led to the adoption of the 1970 Convention. While the illicit trade in cultural heritage was addressed in the 1970 Convention, the return of cultural heritage displaced during periods of colonial rule and other forms of control continued to be the subject of international disagreement. In 1973, however, the UN General Assembly adopted a resolution calling for the ‘Restitution of Works of Arts to Countries Victims of Expropriation’.7 The resolution addressed ‘the wholesale removal’ virtually without payments, of works of art from one State to another, frequently as a result of colonial or foreign occupation and called for the ‘prompt restitution to a country of its objects d’art, monuments, museum pieces, manuscripts and documents by another country, without charge’ on the basis that this would ‘strengthen international co-operation inasmuch as it constitutes just reparation for damage done’. To further foster such developments, UNESCO established the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation in 1978.8 As will be evident later in this chapter, difficulties in the interpretation and implementation of the 1970 Convention lead to the adoption of a further international Convention in 1995, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which completes the existing international regime that applies to the return and restitution of cultural heritage.

6 O’Keefe (2007) op. cit., p. 5. 7 UN Doc. A/Res/3187 (XXVIII). 8 J.A.R. Nafziger, ‘The Principles of Co-operation in the Mutual Protection and Transfer of Cultural Material’ (2007) 8 Chicago Journal of International Law 147, 150; S. von Schorlemer; ‘UNESCO Dispute Settlement’ in A.A. Yusuf (ed.), Standard-setting in UNESCO: Normative Action in Education, Science and Culture, Leiden: Martinus Nijhoff and UNESCO Publishing, 2007, p. 101.

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The return, restitution and repatriation framework Essentially, the problem addressed is the movement of cultural heritage from one entity to another where the entity that has lost possession of the cultural heritage claims it as a manifestation of its culture. That entity may be a State, a group, or even an individual. This necessarily raises not only complex notions of cultural identity, but also legal issues of ownership, possession and control. It also raises issues of the right of a State over groups or individuals claiming cultural heritage from other entities, whether other States, groups or individuals. Further complicating this is the fact that the loss of possession and movement may have occurred in the distant past and over vast tracks of time, throughout which many of the notions alluded to above have changed. Finally, much of the movement of cultural heritage now takes place in the context of a commercial market for cultural heritage. Some categorisation and conceptualisation is needed in order to address the complex matrix of issues that arise in the movement of cultural heritage and the international conventions designed to address it. An attempt is therefore made to differentiate three forms of movement of cultural heritage by considering the underlying legal issues that require redress. The discussion of these three forms of movement – return, restitution and repatriation – then requires consideration of the concepts of ownership and export control, central to the conventional regimes that address the movement of cultural heritage. Before addressing these concepts, and the forms of movement of cultural heritage, the context in which they operate – the market for cultural heritage – requires some consideration. The market for cultural heritage A market exists for cultural heritage in which there is an interaction between demand for cultural heritage in one location and the supply of that material from another location.9 This is an oversimplification since there is no one market for cultural heritage, but numerous markets with different suppliers and different demanders of different forms of cultural heritage. Yet a broad consideration of what might be termed the international art and antiquities market, and in which a great deal of archaeological objects is found, is discernible. This art and antiquities market is a vast, but ill-defined market. It includes markets for coins, antique furniture, paintings, sculpture, and almost any object of antiquity. The latter includes objects recovered from graves, ancient buildings, monuments, and

9 C. Alder and K. Polk, ‘Stopping This Awful Business: The Illicit Traffic in Antiquities Examined as a Criminal Market’ (2002) 7(1) Art Antiquity and Law 35, 36. On the illicit market, see S.R.M. McKenzie, Going Going, Gone: Regulating the Market in Illicit Antiquities, Leicester: Institute of Art and Law, 2005; P.J. O’Keefe, Trade in Antiquities: Reducing Destruction and Theft, London: Archetype Publications, 1997; and M.M. Kersel, ‘From the Ground to the Buyer: A Market Analysis of the Trade in Illegal Antiquities’ in N. Brodie. M.M. Kersel, C. Luke and K. Walker Tubb, Cultural Heritage, and the Antiquities Trade, Gainesville: University Press of Florida, 2006, pp. 188–205.

The return, restitution and repatriation of movable cultural heritage 137 abandoned and rediscovered sites of cities, homes, places of worship, battlefields, shipwrecks; almost anywhere touched by humans. In almost all cases, their examination in situ is of importance to archaeology. However, while the context and origin of these objects may be of some importance to purchasers in the art and antiquities market, the objects are essentially valued as works of art. This international market has a demand side found primarily in rich developed States, with high demand but short supply of cultural heritage, such as US, UK, Sweden, Japan, France and Switzerland. These States continue to demand vast quantities of cultural heritage. The supply side of the art and antiquities market emanates from States such as Peru, Mexico, China, Nigeria, Cambodia, Egypt, Iran and Iraq.10 Unfortunately, regulating and restricting this supply is difficult for many of these States. Most do not have the resources to excavate the archaeological sites found in their territory, or to protect these sites in situ. As long as demand exists for material from these sites, the archaeological heritage is at risk. As a generalisation then, the demand side appears to be largely rich, developed, mostly western States, while the supply side is largely poor, developing, often ex-colonial, States. Terms such as ‘market’ State and ‘source’ State (or State of ‘origin’), have also been used in a very general sense to characterise States on either end of the spectrum of interests in the international trade.11 One of the great difficulties in addressing this trade in cultural heritage is that it covers not only a range of objects, but also a range of circumstances in which the object had left the ‘source’ State. An important characteristic of this market in cultural heritage is that not all parties to the market are willing participants, and many of the developing source States have attempted to restrict the supply of their cultural heritage to the market. As such, while some of the cultural heritage is legitimately in the market, much is illegitimate, or illicit. Three broad categories of illicit cultural heritage are distinguishable. The first is the trade in cultural heritage that has been illegally removed from archaeological sites or monuments in a source State. That is, the removal is undertaken clandestinely, without having permission from the State that controls archaeological excavations, and usually without archaeological expertise. It is usually the case that ownership of the material is vested in the State, though the landowner may also, in some cases, be declared the owner of any material found. Second, the illicit trade includes stolen cultural heritage, from both public institutions such as museums and universities, as well as from private individuals and corporations. Finally, the illicit trade may

10 N. Brodie, J. Doole and C. Renfrew, Trade in Illicit Aantiquities: The Destruction of the World’s Archaeological Heritage, Cambridge: McDonald Institute for Archaeological Research, 2001 includes chapters on the extent of the supply (almost all illicit) from developing States such as Cambodia, Thailand, China, Pakistan, Afghanistan, India, Kenya, Somalia, Tanzania, Niger, Belize, Peru, Syria, Jordan, Turkey and Cyprus. Some developed States do, however, also suffer a degree of illicit excavation and trade, including UK, US, Italy and Greece. 11 These terms are used not only to refer to incidents that involve illicit export but also instances of theft and illicit excavation as well as in the context of the return of cultural heritage where no illegality regarding the movement is in question.

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simply be the export of cultural heritage without an export permit. This may include illicit export by the lawful owners of the cultural heritage, usually done to obtain a better price for the cultural heritage in another State’s art and antiquities market. Usually, however, it is the illicit export of cultural heritage that had been illicitly excavated and stolen. This latter form of illicit activity has also led to the use of further generalising terms. At either end of the spectrum of States involved in the illicit trade in cultural heritage is the ‘exporting’ and the ‘importing’ State. While this is clear in any given example, as a broad characterisation of a State this is problematic. The use of the terms ‘exporting’ and ‘importing’ is, as explained by Prott: a kind of rudimentary shorthand for a much more complex problem. Although current trade flows may render a country likely to see itself as one or the other, this can change over time. … Some States see themselves as both, and some States are really ‘transit’ States with a far bigger through traffic of cultural objects than either definitive import or export.12 The UK, for example, has a significant art and antiquities market into which flows a great deal of cultural heritage. In this sense it is an importing State. Much of this heritage will, however, be bought on the UK market by foreign buyers, and the material will then flow out of the UK. This export, however, will not be regulated as such since its legitimacy is dependent on the original import. While the UK does limit some classes of export, these are usually those which already existed in the UK and not related to the import. As a net importing State, the UK does, however, suffer from illicit exports. It has been estimated that cultural heritage valued at up to £150 million is illicitly excavated and stolen each year, much of which is illicitly exported.13 Similarly, the US, while usually designated an ‘importing’, ‘market’ State is also a supplier of Native American artefacts, which drives the supply of illicit material for its own, and other market States’ demand. A State such as Peru or China is likely to be characterised as an exporting State, not in the sense that a great deal of its cultural heritage is exported, but rather that a great deal is illicitly removed from that State contrary to its export laws. Some States, such as Switzerland, and to a certain extent the UK and US, are also transit States in that a vast amount of cultural heritage enters the State to be sold on its art and antiquities market and then leaves that State again to be dispersed to the States of the purchasers. Whilst the use of these terms are gross generalisations, and in many ways unnecessarily polarise debate and conflict, they do reflect the patterns that emerged during negotiations in both the 1970 Convention and UNIDROIT Convention.

12 Prott (1997) op. cit., p. 16. 13 Report of the Ministerial Advisory Panel on Illicit Trade, December 2000 discussed in K. Chamberlain, ‘UK Accession to the 1970 UNESCO Convention’ (2002) 7 Art Antiquity and Law 231, 234.

The return, restitution and repatriation of movable cultural heritage 139 During negotiation of the latter, for example, two ‘more or less homogenous’ blocks developed. On the one hand were those States that adhered to a principle of the free movement of cultural heritage and wished to restrict the scope of the Convention to preserve the protection enjoyed by purchasers of cultural heritage on their art and antiquities markets. On the other hand were those States that wished to extend the principle of restitution of stolen or illegally exported cultural heritage as far as possible. This polarisation of the demand and supply side of the market revealed a number of important characteristics. Not only is the market for cultural heritage rich in developed States, but those driving demand are often the economic and social elite in that State. Usually prices paid for cultural heritage in the market are amongst the most expensive objects in existence.14 Not unsurprisingly, those driving demand exert considerable economic and political power, with the result that the market in such States is conducted legally, often irrespective of the legality of the supply of the heritage to the market. Quite the opposite occurs in supply side States, in which those supplying the cultural heritage to the market are often the poorest members of their society, engaged in a supply activity which is illegal and often subject to stringent penalties, and who receive a very small fraction of the price reached on the market. In this polarised context, debate exists as to the degree to which the market ought to be made illicit, and how a licit market might be regulated. A view expressed by supporters of a licit trade in archaeological heritage is that much of this heritage belongs to the common heritage of humankind, and that a licit trade allows for the free circulation of all cultural heritage. This circulation would have scientific, cultural and educational value in that it inspires understanding and appreciation of other cultures and values, and enriches the culture of all States.15 Whilst this argument has some merit, simply allowing a free flow of goods is not the only way to address these concerns.16 Furthermore, it is likely that such a free flow of cultural heritage would be a one way flow, with developing States supplying the art and antiquities market, but unable to participate in the demand side of the market. Supporters of a licit trade also point to the ineffectiveness of retentive legislation, especially export limitations, and the consequential flourishing black market.17 In response, it is argued that simply removing the exporting limitations would not necessarily protect the archaeological information to be derived from the archaeological heritage. It is here that international efforts in the form of the 1970 Convention have attempted to provide a basis for reconciling these views. In particular, the Convention seeks to establish a regime by which the imposition of import controls by developed States accords with source

14 Alder and Polk, op. cit., pp. 37–9. 15 See J.H. Merryman, ‘A Licit International Trade in Cultural Objects’ (1995) 4 International Journal of Cultural Property 13; J.H. Merryman, ‘Protection of the Cultural Heritage? (1990) 38 American Journal of Comparative Law 513. 16 See Renfrew, op. cit., p. 21. 17 Merryman (1995) op. cit., p. 20.

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States’ export controls. Such an approach would acknowledge that while ‘national’ archaeological heritage also has an international aspect, being part of the common heritage of humankind, the State of origin of the material is the most appropriate State to act as steward of this material on behalf of all humankind.18 Defining terms of movement When discussing the movement of cultural heritage from one State to another, a variety of terms are used, such as ‘return’, ‘restitution’, ‘repatriation’ and ‘restoration’. Often the terms are used interchangeably, as if synonyms, and do not appear to have any universally accepted meanings.19 This reflects the very great variety of circumstances in which any particular cultural heritage object has left its place of origin and is found somewhere else, often in another State, and the difficulty in categorising any particular example under one of these terms. Indeed, determining exactly what is meant by ‘place of origin’ further confuses the matter. Yet some of these terms are being used in a more exacting sense, if not as definitional categories. Kowalski, for example, provides a useful classification for the terms ‘restitution’, ‘repatriation’, and ‘return’.20 From this initiative, the terms ‘restitution’, ‘return’ and ‘repatriation’ may be used in a more categorical way, while ‘restoration’ is used more generally and includes within its scope restitution, return and repatriation. Much, however, will depend on context, and the term ‘return’ may be used in a general sense, in the same way as restoration is used simply to refer to the movement of the cultural heritage from one State to another. A consideration of how these three terms – restitution, return and repatriation – might be used in a more categorical sense is helpful in disentangling some of the issues that underpin the movement of cultural heritage. Restitution Restitution, according to Kowalski, applies to cases where there has been a ‘violation of the prohibition of theft and pillage imposed by the binding law’.21 Its purpose, as far as is possible, is to restore the state of affairs prior to the

18 L. Prott, Commentary on the Unidroit Convention, Leicester: Institute of Art and Law, 1997, p. 16. 19 W.W. Kowalski, Art Treasures and War, Leicester: Institute of Art and Law, 1998, p. 2. See for example A.F. Vrdoljak, International Law, Museums and the Return of Cultural Objects, Cambridge: Cambridge University Press, 2006, p. 2 (using return and restitution as synonyms); Renfrew, op. cit., p. 21 (also using return and restitution as synonyms). 20 W.W. Kowalski, ‘Claims for Works of Art and Their Legal Nature’ in Resolution of Cultural Property Disputes, The Hague: Kluwer International, 2004, pp. 31–51. 21 Kowalski (2004) op. cit., p. 33. Prott and O’Keefe, however, tentatively use the term ‘restitution’ as a synonym for ‘return’, applying it to ‘treasures taken abroad at a time when the country of origin was, for reasons of foreign domination …. or colonialism … not in control of its own destiny’. Prott and O’Keefe (1984) op. cit., p. 33.

The return, restitution and repatriation of movable cultural heritage 141 displacement of the cultural heritage (restitutio in integrum).22 This would include the return of cultural heritage taken contrary to the laws of war. Indeed, it is from the international law of war that the concept, as it relates to cultural heritage, first developed. The right to restitution of illegally acquired objects in times of war is closely associated with the emerging international law of nation-States; this right appearing in the 1648 Westphalian Peace Treaties23 and reflected at the end of the Napoleonic wars with instances of the restitution of specific items back to the territories from which they had come. It is not clear to what extent these acts of restitution actually reflected any binding international law at the time. For example, a number of manuscripts that had been taken from the Vatican by Napoleon’s forces were returned over two hundred years later, not to the Vatican but to Heidelberg, since they had been taken from there to the Vatican earlier during the Thirty Years War.24 While this might assume that their removal from Heidelberg was contrary to international law, this is not entirely clear. By the end of the First World War, however, the concept of restitution was firmly established and reflected in the Treaty of Versailles which provided for the restitution of indentified cultural heritage back to the territory from which it came. Germany, for example, had to return to Britain the original Koran of the Caliph Othman and the skull of the Sultan Mkwawa.25 The Treaty also introduced the concept of restitution in kind, by which cultural heritage of one State was to be transferred to the opposing belligerent States as compensation for lost, and essentially irreplaceable, cultural heritage. Pursuant to article 247 of the Treaty of Versailles, Germany was required to deliver to the library of Louvain manuscripts, incunabula, books, maps and objects corresponding in number and value to those that had been destroyed by the Germans.26 Given the vast scale of looting and pillage of cultural heritage during the Second World War, considerable developments were made in formulating regulations for the restitution of cultural heritage at the end of the war; a process that continues today as many, especially members of the Jewish community, continue to seek the restitution of their cultural heritage. Further content was given to the requirement for restitution following the cessation of hostilities in the 1954 Hague Convention and the First Protocol.27 In the international law of war, the concept of restitution is firmly established, requiring restitution when the cultural heritage has been illegally removed from one State and taken to another, or misappropriated by the military. Since it is the illegality of the removal which underpins the concept of restitution, it need not be restricted to illegal removal only in times of war. It is easily extended to situations where cultural heritage is lost to an owner by way of theft. A leading example is

22 23 24 25

Kowalski (1998) op. cit., pp. 2–4. Monden, op. cit., p. 330. Kowalski (2004) op. cit., p. 36. F. Shyllon, ‘Negotiations for the Return of Nok Sculptures from France to Nigeria – an unrighteous conclusion’ (2003) 7 Art Antiquity and Law 133, 135. 26 Kowalski (2004) op. cit., p. 39. 27 See Chapter 3.

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the restitution of the Lydian hoard to Turkey. The Metropolitan Museum of Art in New York purchased a number of golden objects during the late 1960s and early 1970s reputed to have come from looted tombs in the Ushank region of Turkey. When these were put on display in 1984, Turkey claimed ownership, and in the face of undeniable evidence that they were looted and that the Museum knew they were looted when purchasing them, they were returned to Turkey before a court case was initiated. The recognition of Turkey’s ownership, and of the looting, underpinned the restitution.28 This use of the term restitution may, however, be expanded to refer to any violation of a legal norm or prohibition. It might include not only prohibitions relating to acts done in times of armed conflicts, but any acts which are contrary to a State’s laws, including theft and illegal export. It is distinguishable from ‘return’ in that the latter is based upon a moral or ethical obligation to restore the cultural heritage rather than an obligation which arises from a breach of some legal norm. There are, however, times when the distinction may be blurred. In East Germany for example, a systematic scheme for the confiscation of cultural heritage was devised by the Stasi (East German secret police). Through manipulation of the tax laws owners were forced to hand over cultural heritage, particularly artworks, in lieu of payment. Claims for the restitution of this ‘confiscated’ cultural heritage are now being made by disposed owners.29 Return Kowalski uses the term ‘return’ in two situations; the first, to situations where cultural heritage left the State of origin during a period of colonial occupation, and second, to cultural heritage illegally exported from a State. Return in the first sense used by Kowalski reflects situations where it is not clear that any specific international norm has been breached. It can be applied not only to recent colonial periods, but to similar periods of colonisation or foreign occupation or control in the distant past. This might include, for example, the occupation of Greece by the Ottoman Empire at the time of the removal of the Parthenon marbles, arguably the most documented and famous request for the return of cultural heritage. It might also include removal of cultural heritage during armed conflict prior to the development of the international law of war preventing such actions. A great many such instances might be cited here as examples, such as the 1860 sacking of the Chinese Summer Palace by British and French Forces during the Second Opium War and the 1897 punitive expedition by British Forces against Benin, in which vast amounts of cultural heritage were removed and

28 Renfrew, op. cit., pp. 42–4. See also S. Williams, The International and National Protection of Movable Cultural Property. A Comparative Study, Dobbs Ferry, NY: Oceana Publications, 1978, pp. 119–24 on the return of ten to twelve thousand Ecuadorian artefacts returned from Italy to Ecuador and the restitution of the Nigerian terracotta sculpture ‘Nok’ from Canada to Nigeria. 29 D. D’Arcy, ‘For Sale: works seized by Stasi’, The Art Newspaper, June 2008, p. 60.

The return, restitution and repatriation of movable cultural heritage 143 are today found lawfully in public and private collections in many foreign States.30 The use of the term ‘return’ to refer to cultural heritage illicitly exported is unfortunate. Its use arises primarily from the drafting of the 1995 UNIDROIT Convention, in which chapter II is entitled ‘Restitution of Stolen Cultural Objects’ while chapter III is entitled ‘Return of Illegally Exported Cultural Objects’.31 This use of the term ‘return’ is also evident in the 1993 European Union Directive on the ‘Return of Cultural Objects Unlawfully Removed from the Territory of a Member State’.32 The use of the term ‘return’ in these instruments is, however, qualified by reference to the illegality of the export. Given the close alignment of the term ‘restitution’ with unlawful acts, its use would have been preferable to that of ‘return’. Nevertheless, given the qualified use of the term ‘return’ in these instruments, an unqualified term would allow it to be used in a general sense to refer to the restoration of cultural heritage that was removed lawfully, though perhaps unethically, from another territory. Kowalski does note that the use of the term ‘return’ in relation to the illegal export of cultural heritage is justified on the basis that the norm is of a national origin and not recognised as an international norm.33 As such, from an international perspective, it is argued, no question of illegality arises. This is only true to the extent that it might not be so in terms of customary international law, but the adoption of the 1995 UNIDROIT Convention at least provides a conventional basis for the recognition of this as a conventional international norm. At the same time, theft is also a national norm, and while generally it is recognised by all States, its content does differ from State to State, and as such, is as national in character as that of a prohibition on export. Relating then to the legal removal of cultural heritage from the place of origin in the past, questions concerning the return of cultural heritage are largely dealt with on a case-by-case basis through diplomatic channels. UNESCO and the Intergovernmental Committee for Promoting the Return of Cultural Property to its Country of Origin or its Restitution in Cases of Illicit Appropriation supplement the diplomatic process by serving as a committee of ‘good offices’ to achieve the return of cultural heritage. The return of cultural heritage need not necessarily be to a State but may (like repatriation discussed below) be to an ethnic or indigenous group in another State. For example, in 1988 the Glasgow City Council returned the Lakota Ghost Dance Shirt to the Wounded Knee Survivors Association in South Dakota. Similarly, the

30 See J. Greenfield, The Return of Cultural Treasures, 2nd edn, Cambridge: Cambridge University Press, 1996, pp. 118–23. 31 See Prott (1997) op. cit., p. 17 for a discussion of the difficulties encountered in using the terms ‘restitution’ and ‘return’ in the Convention. 32 Council Directive 93/7/EEC 15 March 1993. See M. Frigo, ‘The proposed EEC Council Directive on the return of cultural objects unlawfully removed from the territory of a Member State’ (1993) 2 International Journal of Cultural Property 418. 33 Kowalski (2004) op. cit., p. 51.

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Marischal Museum in Aberdeen returned a horned head-dress to the Blood tribe of Canada.34 In these cases, there was no legal obligation to return the cultural heritage, but was done out of a sense of justice and a recognition of the importance of the cultural heritage to the claimants. The meaning, use and application of the terms ‘restitution’ and ‘return’ ascribed here are reflected in the naming and remit of the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation. As such, the term ‘return’ can best be used in the context or returning cultural heritage to the State of origin when no illegality as to its original movement arises. Repatriation Kowalski uses the term repatriation in a more specific context than is usual. He uses it as a sub-category of the more general term restoration, to apply to circumstances when there has been a change to the territorial dimensions of a State resulting in the displacement of cultural heritage. This might be used for a change in territorial boundaries between existing States, the emergence of new States when a multi-national State, such as Yugoslavia, broke apart, or where parts of a State were ceded to another State.35 In the cases discussed, this has usually involved the changing of territorial boundaries after the end of an armed conflict, and the inclusion in the subsequent peace treaties for repatriations. In most cases, however, the removal of the cultural heritage would fall under the category of restitution to the extent that the removal was contrary to the existing international law of war, usually applying to the prohibition of the removal of cultural heritage from occupied territory. In other cases, the removal of the cultural heritage occurred in the context of non-belligerent occupation, in circumstances akin to colonisation, or where multi-national States exploded into new separate sovereign States.36 Where the initial removal from one territory to another was not contrary to international law at the time, the call for restoration is more akin to a request for return of cultural heritage than restitution. In this sense, repatriation will be included in either restitution or return for current purposes. Repatriation is therefore best used to describe the restoration of cultural heritage within a State. This may, however, be between constituent parts of a State, which occurs particularly in States which have devolved constitutional powers or are federations of some sort. In the UK, for example, this might include repatriation between England, Northern Ireland, Wales and Scotland. The most celebrated repatriation occurred in 1996 when the Stone of Scone was restored to Scotland, exactly 700 hundred years after its removal from Edinburgh to London.

34 Last, op. cit., p. 79. 35 Kowalski (2004) op. cit., p. 33. 36 Cf. however, Kowalski (2004) op. cit., p. 50.

The return, restitution and repatriation of movable cultural heritage 145 The Welsh have made similar calls for the repatriation of Welsh artefacts held in the British museum.37 Repatriation is, however, a useful term to use in relation to the restoration of cultural heritage to an indigenous, ethnic or local community, but which does not originate in another State. Used in a narrower sense than by Kowalski,38 it has a particular national character and usually requires the restoration of cultural heritage from a central government to a minority or indigenous community, often from a national museum and restored to the community from which it came. The use of the term repatriation in this sense is reflected in the US Native Graves Protection and Repatriation Act which seeks to repatriate cultural heritage found in US museums and other institutions to the Native American clans to which it belongs. For example, this legislation allowed the American National Parks Service to restore a battle hammer, which they had owned for thirty years, and which had been used in an 1804 battle by the clan chief, to the Kiksadi clan in 2003.39 Repatriation need not apply solely to repatriation to an indigenous or ethnic minority, but to a local community. This might include, for example, the repatriation of the Lindisfarne Gospels from the British Library to Newcastle, with the prospect of them being returned to Durham Cathedral, from where they had been removed during the Reformation. The repatriation of cultural heritage to groups or communities, as distinct from the return of cultural heritage to a State, or its restitution to an owner (be it the State or an individual), might further be given context by the development of groups’ rights, as distinct from individual rights. Whilst groups have yet to have such rights broadly recognised, their possible emergence might underpin a legal regime for the repatriation of such heritage.40 Place of origin The return or restitution of cultural heritage usually involves its movement from a current possessor to some other place – its place of origin. Essentially the return, restitution or repatriation of cultural heritage seeks to reunite a culture with the physical manifestations of that culture. This is particularly so with regard to repatriation. This, however, might not necessarily require the movement of cultural heritage from one physical territory or place to another, but rather vesting control in an ethnic or indigenous community rather than a government entity. In an international context, however, return or restitution usually refers to the movement of cultural heritage from one State to another. Two difficulties arise. The first is simply identifying the territory or place an object came from. The second is

37 In 2002, a member of the Welsh National Assembly called for the repatriation of the Gold Cape of Mold, a bronze age artefact held by the British Museum. See Last, op. cit., p. 69. 38 Kowalski (2004) op. cit., p. 43. 39 Last, op. cit., p. 73. 40 J. Moustakas, ‘Groups Rights in Cultural Property’ (1989) 74 Cornell Law Review 1184.

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a more complex problem. That is, what culture can actually claim to be embodied in the heritage in question. Identifying the physical origin An enduring problem for many claimants of displaced cultural heritage is the difficulty in proving the origin of the object in question. The burden of proof usually lies with the claimant so that if the claimant cannot show, beyond a balance of probabilities, that the object did indeed come from the claimant’s land, the claim will fail and the possessor will be allowed to continue possessing the object. This problem is greatest when objects are illicitly excavated from unknown sites and little evidence can be deduced about when or where they were excavated. For example, English authorities have failed to recover the Ickingham Bronzes, because they cannot prove beyond a balance of probabilities that they did indeed come from that of a Scheduled Ancient Monuments Site in England.41 Exceptions, however, do arise. For example, in Bumper Development Corporation Ltd v. Commissioner of Police,42 the State of India (more specifically the temple Arul Thiru Viswanatha Swamy in the State of Tamil Nadu) was able to have a statue of S´ ivapuram Natara- ja restored to it after it was able to adduce evidence that the statue had similar metallurgical qualities to other statues known to have come from the same site, as well as similar patterns of termite mounds on the statue and type of soil adhering to it as the other known statues.43 While in some cases sufficient evidence has been available to make out a successful claim, in most cases claimants will not have sufficient evidence to confidently make out a claim, and will often seek the restitution of the object by non-legal routes. In cases of the export of clandestinely excavated and exported archaeological objects, little evidence may be available regarding the illicit export. For example, in R v. Heller, Zango and Kassam44 the Alberta Provincial court in Canada held that there was no evidence to prove that the cultural heritage in question, a Nok sculpture, had been exported after the imposition of export limitations by Nigeria, and so the claim for restitution failed. Identifying the cultural origin Whilst evidentiary problems may exist as to when, where and by whom an object was created or excavated, a more complex problem arises in determining the culture that the artefact embodies. As movable items, the heritage is capable of embodying more than one culture as it is transferred from one place to another. Conversely, cultures move, and leave the physical manifestations of the culture in

41 42 43 44

Last, op. cit., p. 67. Bumper Development Corporation Ltd v. Commissioner of Police [1991] 4 All E.R. 638. Greenfield, op. cit., pp. 150–6. R v. Heller, Zango and Kassam (1983) 27 Alta LR (2d) 346.

The return, restitution and repatriation of movable cultural heritage 147 places subsequently settled, conquered or occupied by other cultures, which in turn might impose their culture on the physical remains of previous cultures. Where exactly a cultural object physically belongs is therefore problematic. It may not, for example, necessarily belong to the culture which controls territory in which it is found. For example, during excavation of a Roman colony in Libya, an important second-century marble Roman venus was recovered and moved to Italy during the Second World War and then given to Herman Goering by an aide of Benito Mussolini. After the war, the statue was controversially returned, not to Libya, but to Italy.45 As such, the cultural origin of the statue, and not its place of possible manufacture, or subsequent discovery, proved decisive.46 Geographic considerations are therefore only one of many in differentiating between differing cultural claims to an object. The obscure history of the Koh-i-Noor diamond, found in the English crown, is illustrative. The diamond was acquired, legally, by the British in 1849 from the Sikh kingdom based at Lahore, which is in today’s Pakistan, but then part of the undivided Punjab and Sikh Kingdom. Since it was in Lahore when the British obtained possession Pakistan made a formal request for its return in 1976. In 1983, however India included the diamond in its list of heritage objects it would want returned to India. The return here is not to the physical place of origin, but to the cultural place of origin, that is the Sikh ‘homeland’ of Punjab in India. To further confuse matters, the diamond had in fact only been in Lahore for 36 years. Prior to that is had been in Afghan possession in Kabul for 66 years, and before that in Mughdal possession in Delhi for 213 years. Given this Afghan connection, the Taliban regime had, in 2001, also made a request for the return of the diamond to Afghanistan.47 Finally, it has, of course, been in British possession for 160 years. As such, it has been argued that it has become part of the cultural heritage of Britain through its incorporation into the crown and its subsequent use as part of a national symbol. Whilst this history is generally accurate, the actual circumstance of each movement is obscure and the subject of much debate. Nevertheless, given the very real difficulty in identifying the place of origin, be it territorial or cultural, it is not surprising that it remains in British possession.48 The notion that an object can acquire cultural importance to more than one culture has arisen in a number of instances as an argument against restoration to the culture of origin. For example, this argument was raised by Italy in initially resisting a request for the return of the Obelisk of Axum to Ethiopia, and continues to be raised by the British Museum with regard to the Parthenon Marbles.49

45 Last, op. cit., p. 80. 46 The opposite can also occur. For example, at the end of the Napoleonic wars, a number of paintings that had been take from Flanders were returned there, though control of the territory had subsequently changed from the Hapsburgs dynasty to the Dutch monarchy. Kowalski (2004) op. cit., p. 36. 47 D. Gilman, The Idea of Cultural Heritage, Leicester: Institute of Art and Law, 2006, p. 8. 48 Greendfield, op. cit., pp. 123–9. 49 Last, op. cit., p. 80.

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Within an international system that is based on the concept of the nation State, the return, repatriation or restitution of cultural heritage is further complicated by States acting as proxies for a culture, and claiming the restoration to the territory of the claimant State, and not necessarily to the claiming culture. As Kowalski illustrates, the development of the concept of restitution after the conclusion of war reflected a principle of territoriality, such that cultural heritage was restored to the territory from which it came, irrespective of whether the heritage ‘belonged to that culture’, or what political and social changes had occurred. It is then often left to the claimant State to determine whether it ought to be repatriated to any culture or group within the State. Concepts of ownership Private ownership In many jurisdictions private individuals or incorporated entities may own cultural heritage that falls within the definitions contained in conventional international law. The loss of that heritage will usually be by way of theft, though it may be subject to expropriation from the State. The latter will not usually give rise to an international matter, unless, for example, the owner was a foreign national and a dispute as to adequate compensation arises. The loss of ownership of cultural heritage can be a difficult issue since it often requires considerations of ownership claimed in the distant past. Determining exactly who the owner was in the past, and providing proof of ownership, particularly when claimed by indigenous or ethnic groups rather than individuals, can be hard to do, as is providing evidence of how possession was actually lost. Ordinarily ownership laws of one State will be recognised by another State, subject to the possible rights of the purchaser in good faith and the operation of statutes of limitations or rules of prescription. An owner of cultural heritage will therefore be able to enforce his ownership rights in cases where the heritage has been stolen and exported to another State. Where a stolen object is taken into another jurisdiction, conflict of laws issues may arise. That is, there may be a difference between the laws that apply in the State where the cultural heritage item was stolen and the law of the State in which the cultural heritage is subsequently found. For example, while in common law jurisdictions50 a thief can never acquire good title to a stolen item, and cannot therefore pass good title to a purchaser of that item (nemo dat quod no habet), in the civil law jurisdictions51 a bona fide purchaser may acquire title. Furthermore the circumstance in which a bona fide purchaser may acquire title differs from jurisdiction to jurisdiction. In particular, the lapse of time between the theft and the good faith purchaser’s purchase can determine whether the original owners can

50 Such as England and Wales, US, Canada, South Africa, New Zealand and Australia. 51 Such as France, Italy and Spain.

The return, restitution and repatriation of movable cultural heritage 149 successfully reclaim their property. Even then, in some States, the original owner might have to pay compensation to the bona fide owner.52 In resolving such disputes, the court in which that the plaintiff has chosen to pursue the case must first determine what laws should apply. The law that applies to the issue is not necessarily the law of the State in whose court that matter is being adjudicated. It may be the law of another State, which will address issues such as how ownership may be acquired and lost, and may include the application of statutes of limitations such that an action cannot be taken if a certain time period has elapsed between the loss of possession by the claimant and the time of adjudication.53 One of the most widely accepted conflict of law rules is that, in determining property rights, a court applies the lex rei sitae, that is, the law of the place where the property is situated when the disputed title is said to have been acquired.54 In Winkworth v. Christie, Mason and Woods Ltd,55 for example, a valuable collection of Japanese miniatures (netsuke) were stolen from Winkworth in England. Sometime later, they were offered for sale by Christie’s in London. Winkworth initiated an action in England for the restitution of the property. The consignor, Marchese Paolo Da Pozzo, however, argued that he had bought the collection in Italy in good faith, and was therefore the rightful owner. Since Winkworth, as the plaintiff, was challenging Da Pozzo’s ownership, the court applied the law of the place where that disputed title was acquired, which in this case was Italy. Since Italian law vested title in a good faith purchaser at the time of purchase and irrespective of when the theft occurred, the defendant was declared owner. The result in this case therefore depended on Italian law, even though the case took place in England, and concerned a theft in England. Had the defendant, for example, bought the items in England or France, rather than Italy, a different outcome would have resulted. Since English law adheres to the principle of nemo dat quod no habet, that is, a person cannot convey to another a better title than he or she has to the property in question, the defendant could never have acquired a better title than Winkworth and the items would have been restored to him.56 French law, on the other hand, provides that possession of movables is equivalent to title if

52 For example, under French Law, while the original owner may claim restitution of stolen property within three years, compensation must be paid to the bona fide purchaser if the property was bought at auction or through a dealer. French Civil Code article 2279, 2280. 53 On the basic principles of private international law (or conflict of laws), see J.J. Fawcett, Cheshire, North & Fawcett Private International Law, 14th edn, Oxford: Oxford University Press, 2008. 54 L.V. Prott, ‘Problems of Private International Law for the Protection of the Cultural Heritage’ (1998) Recueil des Cours 219, 262. This rule is, however, susceptible to different interpretations. It has, for example, been interpreted by a French court to mean the law of the place where the property is situated at the time of litigation. Stroganoff-Scherbatoff v. Bensimon 56 Rev. crit. de dr. int. privé (1967), 120. 55 Winkworth v. Christie, Mason and Woods Ltd [1980] CH 496. 56 Common law systems do, however, apply statutes of limitation which prevent action being taken after the expiration of certain time periods. See for example Autocephalous Greek Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278 (7th Cir, 1990), in which the court found

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acquired in good faith and not claimed by the original owner within three years of the theft.57 As such, Winkworth would have succeeded in having the property restored to him as long as the action was taken within three years of the theft. State ownership A great many States have vested the ownership of cultural heritage, particularly that which lies undiscovered in unknown archaeological sites, in the State itself. Where a State claims ownership of cultural heritage, through a blanket declaration of ownership of all cultural heritage, difficulties arise. The first difficulty is that, as plaintiff, the State will bear the onus of proving that the cultural heritage in question is indeed that of the plaintiff State. This requires the plaintiff to discharge the burden of proving that the heritage came from its territory, and at a time when its claim to ownership was in force. This burden can be almost impossible to discharge in cases where the cultural heritage has been illicitly and clandestinely excavated, and spirited out of the State before the existence of the site or its excavation is even known. English authorities, as explained earlier, have failed to recover the Ickingham Bronzes, which are believed to have been illicitly excavated, because they cannot prove beyond a reasonable doubt that they did indeed come from that Scheduled Ancient Monuments site.58 Similarly, when the Government of Peru59 attempted to have a number of pre-Columbian artefacts that it believed has been illicitly excavated from an archaeological site, returned to it, it was unable to discharge the burden of proving that the artefacts did come from a site within the modern borders of Peru. Furthermore, even if it could be shown that the artefacts did come from Peru, the court was not satisfied that the plaintiff could show that they were removed at a time when the Peruvian government’s legislative claim of ownership was in force at the time of the removal. The same problem arose in relation to pre-Columbian artefacts illicitly excavated and exported from Mexico and imported into the US.60 States, as owners of cultural heritage, also face the same problems as private owners, such as Winkworth, in relation to the application of the conflict of laws in cases where a State seeks to have its cultural heritage restored to it from a private

57 58 59

60

that the time period depended on when the plaintiff become aware that the defendant had the disputed property in their possession. Article 2279 French Civil Code. Prott (1998) op. cit., p. 257. Last, op. cit., p. 67. Government of Peru v. Johnson, 720 F.Supp. 810 (CD Cal, 1989), Government of Peru v. Wendt, 933 F.2d 1013 (9th Cir, 1991). The court also found that the blanket legislation was not in fact enforced within Peru, and therefore amounted to nothing more than export legislation, which, as foreign public legislation, the US would not enforce. United States v. McClain 593 F.2d 658 (5th Cir, 1979). See also United States v. An Antique Platter of Gold 991 F.Supp. 222 (SDNY, 1997), aff’d 184 F.3d 131 (2nd Cir, 1999) with regard to the recognition of Italian law vesting ownership of archaeological material in the State.

The return, restitution and repatriation of movable cultural heritage 151 individual in another State. Recently, for example, the Republic of Iran sought to have a fragment of a limestone relief, from the ancient city of Persepolis, restored to it.61 The relief was believed to have been illicitly excavated in 1932.62 In 2007, the relief appeared in an auction catalogue of Christie’s London, consigned by the defendant who had purchased the relief through an agent at auction in 1974, and displayed it in her Paris home from 1974 until 2005. On the basis of its legislation vesting all cultural heritage in the State, Iran claimed ownership of the relief. The court, however, applied the law of France as the law governing the title of the defendant since this was the jurisdiction which governed the defendants’ supposed acquisition of title. Since French law provided that title can be obtained by a good faith purchaser by way of prescription after 30 years,63 the court found for the defendant. The outcome will therefore depend on the national law that the court applies according to its conflict of law rules. So, for example, when two Durer paintings were stolen from an East German Government Museum, exported to the US and sold to a collector, who was unaware that they were stolen and bought them in good faith, the US court applied the law of the US as the governing law of the transaction in dispute (the collector’s ownership). Since US law adhered to the principle of nemo dat non quod habet, that is that a thief can never acquire and pass on good title to property, the ownership of the East German Government was recognised, and the paintings restored without compensation to the purchaser in good faith.64 That a court might recognise the legislative declaration of State ownership of all cultural heritages within a State, including that still undiscovered and unexcavated, is not necessarily guaranteed. A number of States will require more than this simple assertion, measuring these claims of State ownership against their own standards of validity and clarity. For example, in seeking the return of preColumbian artefacts removed from Peru, a US court found that Peru’s legislation which purported to confer ownership of all cultural heritage in the State lacked sufficient clarity and certainty to be relied upon, and as the artefacts could not be said to have been owned by the State could not therefore be considered to be stolen.65

61 Iran v. Denyse Berend [2007] EWHC 132 (Q.B.). 62 D. Fincham, ‘Rejecting Renvoi for Movable Cultural Property: The Islamic Republic of Iran v. Denyse Berend ’ (2007) 14 International Journal of Cultural Property 111, 112. 63 Article 2262 French Civil Code. 64 Kunstsammlungen Zu Weimer v. Elicofon, 536 F.Supp. 829 (DCNY, 1981), aff’d 678 F.2d 1150 (2nd Cir, 1982). See also Hooge Rad der Nederlanden (1983) 445 NJ 1402; and Autocephalous Greek Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278 (7th Cir, 1990), in which frescoes were ordered to be returned to the Church as owner. 65 Government of Peru v. Johnson. 720 F.Supp. 810 (CD Cal, 1989). See also R v. Yorke (1998) 166 NSR (2d) in relation to Bolivian claim of State ownership. A similar situation arose in relation to South Africa’s claim to ownership of the artefacts from the wreck of the Dodington. See C.J.S. Forrest and J. Gribble, ‘The illicit movement of underwater cultural heritage: The case of the Dodington coins’ (2002) 11 International Journal of Cultural Property 267. Mexico, Guatemala, Ecuador and Costa

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Where the legislation clearly and unambiguously vests ownership in the State, foreign courts are more likely to recognise the claim of ownership and consider illicit removal of cultural heritage as theft.66 For example, a US District Federal Court held in United States v. An Antique Platter of Gold 67 that the relevant Italian legislation did indeed vest ownership of a 400 BC Gold platter in the State. More recently, another US decision to this effect caused considerable disquiet and anxiety in the antiquities market.68 In that case Fredrick Schultz, a New York dealer and immediate past chairman of the National Association of Dealers in Ancient, Oriental and Primitive Art, was convicted and sentenced to a prison term for conspiracy to receive, possess and sell stolen property contrary to the US National Stolen Property Act. The property in question included the head of a statue of Amenhotep III, the most powerful pharaoh of the 18th dynasty of Egypt dating from 1580 BC, worth in excess of US$1 million dollars. The court found that the 1983 Egyptian Law on the Protection of Antiquities, which vested ownership of all artefacts over a hundred years in the State, was clear and unambiguous. Importantly, the court not only recognised this State claim of ownership, but underscored that a good faith purchaser is required to exercise due diligence in trying to determine whether such a claim exists. The court found that the plaintiff could not claim that he was not aware of the foreign law, as ‘a defendant may not purposefully remain ignorant of either the facts or the law in order to escape the consequences of the law’ of the foreign State in whose cultural heritage he is dealing.69 The UK approach has, more recently, taken a more sympathetic view of foreign State assertion of ownership. In Government of the Islamic Republic of Iran v. Barakat Galleries Ltd 70 the Court of Appeal accepted that the Iranian legislation which vested ownership of all undiscovered cultural heritage in the State was a valid assertion of ownership, and thus a patrimonial claim rather than an attempt to enforce a foreign public law. The extent of the claim of State ownership may differ from one State to another. Some States, for example, might have a default system of State ownership, but with provision for some private ownership. The Chinese Cultural Relics Law, for example, provides that all cultural relics remaining underground, in China’s

66 67 68 69 70

Rica also declare cultural heritage to be State property. Prott and O’Keefe (1984) op. cit., pp. 188–97. However, the implementation of these laws does not appear to have any effect until the cultural heritage is to be exported. Thus, cultural heritage in private collections ordinarily remains in private collections, and it is only when that private owner attempts to export the cultural heritage that the State enforces these expropriation laws. United States v. McClain 593 F.2d 658 (5th Cir, 1979). United States v. An Antique Platter of Gold 991 F.Supp. 222 (SDNY, 1997), aff’d 184 F.3d 131 (2nd Cir, 1999). United States v. Schultz, 333 F.3d 393 (2nd Cir, 2003). See W. Pearlstein, ‘Letter to the Editor: Implications of the Schultz Case’, The Art Newspaper, February 2003, 4. United States v. Schultz 333 F.3d 393, 413 (2nd Cir, 2003). Government of the Islamic Republic of Iran v. Barakat Galleries Ltd [2007] EWHC 705 (Q.B.); [2008] 1 All E.R. 1177.

The return, restitution and repatriation of movable cultural heritage 153 waters or in collections of State organisations, shall be owned by the State. However, as exceptions to this, not only does it provide for private ownership of cultural heritage where the items have been handed down from generation to generation, but allows private individuals and organisations to purchase cultural relics from authorised auction houses and dealers.71 Importantly, this is restricted to Chinese citizens and companies, and foreign entities cannot take part in the market. State ownership through forfeiture Most States restrict the export of cultural heritage. In many cases, the legislation will allow for the forfeiture of any cultural heritage which was illegally exported, or attempted to be illegally exported, with ownership vesting in the State. This assertion of State ownership can, however, be problematic. For example, in Attorney-General of New Zealand v. Ortiz72 New Zealand claimed ownership of five carved Maori panels that had been illegally exported. While the panels were not owned by the State prior to export, their illegal export rendered them forfeit, and only then did ownership vest in the State. The English House of Lords, however, ruled that this only occurred when the illegally exported material was actually seized and in the possession of the State. Since this had not occurred in this case and the panels had already left New Zealand and been sold to the dealer in England, the New Zealand claim of State ownership failed. A simple assertion of State ownership based upon forfeiture may therefore be insufficient to be enforced by a foreign court. The State may therefore be required to actually have seized the cultural heritage at some stage, and then have lost that possession, before the assertion of State ownership based on forfeiture will be successful in having cultural heritage restored to the State. Much will depend on the laws applicable in the foreign court. Export restrictions Most States have legislation which regulates the export of cultural heritage.73 Some, such as Greece and Turkey, prohibit the export of a wide range of cultural heritage, while others, such as Spain, Italy and the UK, prevent only the export of certain cultural objects. Even though a State may allow for a market in cultural

71 Law of the Peoples Republic of China on the Preservation of Cultural Relics 1982 (amended 2002). See S. Gruber, ‘Protecting China’s Cultural Heritage Sites in Times of Rapid Change: Current Developments, Practice and Law’ (2007) 10 Asia Pacific Journal of Environmental Law 253. 72 Attorney-General of New Zealand v. Ortiz [1982] 2 WLR 10; [1982] 3 WLR 570; [1983] 2 WLR 809; [1984] AC. 1 (HL). 73 See O’Keefe (2007) op. cit., pp. 147–50 for an overview of the export systems of a number of States.

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heritage within its borders, it will not necessarily allow all the material in that market to be exported.74 As a basic principle of international law, no State is required to recognise and enforce the public laws of another State. This includes not only penal and revenue laws, but also exportation laws, including those that prohibit the exportation of cultural heritage. As such, no State is required to declare illegal the importation of cultural heritage illegally exported from another State. The UK, for example, has long refused to enforce foreign public law. In Attorney-General of New Zealand v. Ortiz75 the court upheld the rule that ‘English courts have no jurisdiction to entertain an action … for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state’. In response to a UNESCO inquiry concerning the 1970 Convention, the UK Government stated that: [i]t is not possible for HM Government to take measures against individuals or organisations unless the law of the United Kingdom is broken … There is no provision in the laws of the United Kingdom for proceedings to be taken against persons suspected of having infringed the export controls of other countries.76 The US has similarly declined to enforce foreign export laws, including laws whose effect is simply to prevent foreign export. In Government of Peru v. Johnson,77 for example, after examining the Peruvian legislation vesting ownership of all preColumbian artefacts in the State, the court concluded that the legislation was ambiguous and insufficiently clear to amount to an exertion of ownership, particularly since it was not in fact enforced within Peru. As such, the court concluded that the legislation was merely a form of export control which, as foreign public legislation, the US would not enforce. This view of other States’ export restrictions lies at the heart of international efforts to address the illicit trade in cultural heritage. Indeed the 1970 Convention is quite simply an attempt to introduce a system of mutual recognition of each State’s export laws. However, two factors have combined to substantially undermine this regime. First, the 1970 Convention imposes the bulk of the duties aimed at protecting the cultural heritage on the State in whose territory that heritage

74 In China, for example, while a limited internal market for cultural heritage is permitted, the export restrictions are much stricter than those which regulate what items can be bought and sold on the internal market. Relics dating from before 1795 cannot be exported, while all other relics require special export permits. 75 Attorney-General of New Zealand v. Ortiz [1982] 2 WLR 10; [1982] 3 WLR 570; [1983] 2 WLR 809; [1984] AC. 1 (HL). See also The King of Italy and the Italian Government v. Marquis Cosimo de Medici Tornaquinci, Marquis Averardo de Medici Tornaquinci, and Christie, Manson, and Woods (1918) 34 TLR 623 (Ch D). 76 L.V. Prott and P.J. O’Keefe, Law and the Cultural Heritage: Volume 3: Movement, London: Butterworths, 1989, p. 785. 77 Government of Peru v. Johnson 720 F.Supp. 810 (CD Cal, 1989).

The return, restitution and repatriation of movable cultural heritage 155 is found. On the whole, source States have been unable to fulfil these duties. Second, the use of export restriction and blanket claims of State ownership by these source States has been resisted by a number of market States, criticised by commentators as unnecessarily retentionist, and contributed to the failure of the 1970 Convention in particular to halt the illicit trade in cultural heritage.78 Effectiveness of national laws The practical reality is that while many States, particularly developing States, have strict cultural heritage laws, their implementation is, at best incompletely, at worst completely non-existent. Few have the resources necessary to excavate the rich archaeological heritage within their territories, or provide adequate conservation and protective measures for existing sites and monuments. Nor can the often complex and administratively burdensome legal regime be effectively put into effect. The difficulties faced by many States is exemplified by examples from China, Peru and Nigeria. In China, for example, while the Cultural Relics Law provides for State ownership and a prohibition on unauthorised excavations or possession of antiquities, its enforcement is incomplete. There are no penalties for a failure to report finds, and even if reported, it merely means that the authorities are aware of the site and the items found. Corruption, mismanagement, lack of trained staff and economic imperatives all undermine the protection of cultural heritage in China.79 In 2004, for example, the security chief for the Cultural Relics Protection Department of the World Heritage Site of Chengde in Hebie province was sentenced to death for the theft of more than 250 artefacts, and replacing them with fakes.80 There is seldom any other mechanism for protection and sites are then often subjected to illicit excavation. Corruption and political interference in the national protection regime have also undermined protective efforts. A very similar position exists in India81 and Cambodia.82 The approach to protection in some States is unfortunately not suited to the restitution of cultural heritage once it has left the State. Peru, for example, relies

78 E.A. Posner, ‘The International Protection of Cultural Property: Some Skeptical Observations’ (2007) 8 Chicago Journal of International Law 213, 214. 79 Gruber, op. cit., pp. 276–7. 80 Ibid., p. 296. 81 G. Deb, ‘Illegal Trade in Indian Antiquities’ (2005) 19 Art Antiquity and Law 29; N.P. Ahuja, ‘India: A tale of two markets’, The Art Newspaper, September 2008, p. 59. 82 On the trafficking in Khmer cultural heritage and threats to the Khmer sites, see: M. Lafont, Pillaging Cambodia: The Illicit Traffic in Khmer Art, Jefferson: McFarlane and Company, 2004; K.C. Sun, ‘Angkor Sites, Cultural World Heritage’ in B. Hoffman, Art and Cultural Heritage: Law, Policy and Practice, Cambridge: Cambridge University Press, 2006, p. 148; R. Thosarat, ‘The Destruction of the Cultural Heritage of Thailand and Cambodia’ in Brodie et al. (2001), p. 7.

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heavily on its prohibition of export to retain cultural heritage within Peru. While looting is prohibited, private individuals may possess cultural heritage as long as it is registered with the central authorities. This easily allows looted material to be legitimately owned since the internal control of the looting and selling is poorly controlled. However, by prohibiting the export of all cultural heritage, it remains within Peru and, it is argued, allows the care for this material to be distributed between the State and its citizens. Unfortunately, this regime does little to protect the archaeological context of looted cultural heritage, and its export laws are not always recognised by other States in which the looted material inevitably is found.83 Nigeria too suffers from a number of difficulties in giving effect to its legislative regime designed to protect its cultural heritage; particularly through corruption and the ambivalence exhibited by its political leaders. In 1973, for example, on a State visit to England, Nigerian president Yakubu Gowon presented Queen Elizabeth II with a rare Benin bronze head. In search of an appropriate gift, the president had simply gone to the National Museum and chosen a gift despite the protestations of the Museum Director.84 Similar politic intereference occurred in 2000 when the Nigerian President Olusegun Obasanjo agreed to France’s request that it sanction the purchase of a number of Nok terracotta statues which had been illicitly exported from Nigeria. Given the furore that followed, the sale was not sanctioned and Nigeria’s ownership of the Nok was recognised but will remain on permanent display in Paris for 25 years.85 The difficulty in giving effect to the national protection laws in many States is replicated in the difficulties in taking action to have illicitly excavated, stolen and exported cultural heritage returned to it. In most cases, the onus of initiating any action for restitution lies with the State of origin, and poor financial and administrative resources makes it very difficult to initiate this process, let alone sustain it in a foreign State over some time.86 Evidentiary burdens, in particular, are difficult to overcome in foreign courts and favour the possessor of the cultural heritage rather than the claimant. Given the very real difficulties that many developing States face in protecting their cultural heritage, the supply side control of the illicit trade is weak and incomplete. It is naïve, argue Alder and Polk, ‘to assume that much can be gained by prohibitive legislation in source countries, especially countries whose citizens are locked in poverty’.87 Try as they may, source States, as suppliers of cultural heritage, cannot control the demand side of the market. It is demand that controls the market, and to address the illicit trade, demand side control is required.

83 See R. Atwood, Stealing History: Tomb Raiders, Smugglers and the Looting of the Ancient World, New York: St. Martin’s Press, 2004, p. 48. 84 Shyllon, op. cit., p. 148. 85 Ibid., pp. 141–8. 86 See for example Union of India v. Bumper Development Corp. [1991] 4 All E.R. 638. 87 Alder and Polk, op. cit., p. 41.

The return, restitution and repatriation of movable cultural heritage 157 The retentionist debate The protection of cultural heritage by source States through export prohibitions, and through the blanket assertion of State ownership of cultural heritage, particularly that unexcavated and undiscovered, is widespread. The justifications for such an approach are diverse and controversial, and many commentators have criticised the strictness of the export limitations laws of many source States as contributing to the flourishing of the black market in cultural heritage, preventing the development of understanding between nations about their individual cultures, and preventing the free exchange of cultural property that belongs to all humankind.88 Merryman, in particular, has criticised this approach, derogatively termed ‘retentionist’, as merely hoarding cultural heritage which ought to be freely circulated, and which should not be subject to the exclusive right of the State in which they are found. 89 He uses the term ‘protection’ in a narrow sense in order to advocate a certain position on the trade in cultural heritage. He does not, for example, recognise any policy of export prohibition as a form of protection, distinguishing what he calls ‘retention’ from that of ‘protection’. Of course, by disengaging retention from protection, he uses the former in a pejorative sense.90 Key to the objection to retentionism is what Merryman terms ‘cultural nationalism’. The retention of cultural heritage, as a ‘protective’ measure based on the perception of the cultural heritage as being of a particular national character, is pervasive. The ‘romantic’ ideal of nationalism is particularly important to many source States which have only recently become independent. The cultural heritage is a manifestation of this nationalism, necessitating its presence within the nation territory. The extent to which this is true depends on each item of cultural heritage. For some items of cultural heritage, the culture that gave the item its

88 Posner, op. cit., pp. 213–31. W. Buranich, ‘The art collecting countries and their export restrictions on cultural property: Who owns modern art?’ (1988) 19 California Western International Law Journal 153; J. Church, ‘Evaluating the effectiveness of foreign laws on national ownership of cultural property in US Courts’ (1992) 30 Columbia Journal of Transnational Law 179, 227–9; P. Bator, ‘An Essay on the International Trade in Art’ (1982) 34 Stanford Law Review 275, 307–10; G. Ortiz, ‘The Cross-Border Movement of Art: Can and Should it be Stemmed?’ (1998) 3 Art Antiquity and Law 53; and P. Valentin, ‘The UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects’ (1999) 4 Art Antiquity and Law 107, 116. 89 See J.H. Merryman, ‘A licit International Trade in Cultural Objects’ (1995) 4(1) International Journal of Cultural Property 13, 19; See also Merryman’s other works that reiterate this argument: J.H. Merryman, ‘International Art Law: From Cultural Nationalism to a Common Cultural Heritage’ (1983) 15 New York University Journal of International Law and Politics 757; J.H. Merryman, ‘Thinking About the Elgin Marbles’ (1984) 83 Michigan Law Review 1881; J.H. Merryman, ‘The Retention of Cultural Property’ (1988) University of California Davis Law Review 477; J.H. Merryman, ‘The Public Interest in Cultural Property’ (1989) 77 California Law Review 339; J.H. Merryman, ‘Protection of the cultural heritage’? (1990) 38 American Journal of Comparative Law 513; J.H. Merryman, Thinking About the Elgin Marbles: Critical Essays on Cultural Property, Art and Law, The Hague: Kluwer Law International, 2000. 90 J.H. Merryman, ‘Cultural Property Internationalism’ (2005) 12 International Journal of Cultural Property 11.

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cultural significance is not only still alive and flourishing, but still makes use of the cultural item for the religious or ceremonial purposes for which it was designed.91 The retention of cultural heritage promotes the general welfare of the nation by bonding it with its past. Thus, a nation can relate better than others to an item of cultural heritage produced by that culture, it can be enriched by the interaction with the cultural heritage and stimulate a feeling of national pride. While this may be true of property held in public collections, it is not necessarily true of cultural heritage in private collections since the nation may not have access to that heritage and be able to relate to it.92 On the other hand, simply knowing that the cultural heritage of a nation remains in that nation, even though within a private collection, may be of value. Furthermore, the retention of such cultural heritage within the State, even though in a private collection, allows for the possibility that the owner may donate that heritage to the State, beneficially or in lieu of taxes. In other cases, although having a high cultural value, the cultural heritage is viewed as a relic of the past and a representation of that past, rather than the present.93 Merryman suggests that in the case of the cultural heritage falling in the latter category, cultural nationalism is an inadequate justification for retention. Thus, he argues, the Parthenon Marbles would still be Greek and honour Greece’s past if it were still held in the British Museum. While this may be true, it can also be argued that the cultural heritage is still inherently Greek, and the decision of whether and why it should be held in Greece should be determined by that State. At best, it would be the responsibility of other nations to indicate why Greece should not hold it. Retentionist policies have also been criticised in cases where the link between the cultural heritage and the nation might be doubted. Posner, for example, notes that there is little in common between modern Iraqis and those ‘who lived in Mesopotamia thousands of years ago’.94 The same might be said for India, Greece and Turkey. As such, the link between the culture and the State, it is argued, cannot justify retention policies, and such heritage, no longer particular to an existing culture, ought to be freely traded. There is also the added fear that those who control the cultural heritage, control the past in the sense that they are not only able to exhibit the heritage, but may also control its interpretation, scholarly study and place in a wider global context. Thus, retention policies may be utilised by States, or groups within States to control what can be learnt about the past from the physical cultural heritage.95

91 For example, the Afo-A-Kom, a sculpture originating from the Kom peoples of the Cameroon, was stolen and exported to the US. The First Secretary of the Cameroon Embassy stated that ‘It is beyond value. It is the heart of the Kom, what unifies the tribe, the spirit of the nation, what holds us together. It is not an object of art for sale and could not be’. As quoted in Merryman (1988) op. cit., p. 495. 92 Merryman (1988) op. cit., pp. 498–501; Posner, op. cit., pp. 222–3. 93 This might apply, for example, to ancient Egyptian, Greek or Roman remains. 94 Posner, op. cit., p. 223. 95 See B. Trigger, ‘The Past as Power: Anthropology and the North American Indian’ in McBryde, op. cit., pp. 11–40

The return, restitution and repatriation of movable cultural heritage 159 The retention of cultural heritage may not only serve an important cultural function but might also serve an economic function. Retaining the cultural heritage allows it to be economically utilised a number of times, where, for example, it serves as an ongoing tourist attraction, or generates multiple returns when sent on international exhibitions, rather than generating a single return when sold on the international market. Retention policies, it is argued, also play an important role in the protection of certain classes of cultural heritage, particularly archaeological heritage, and are an integral aspect of the protective system for archaeological sites that would ordinarily include the granting of excavation permits as well as export permits.96 In the case of source States with a large number of potential cultural heritage items as yet undiscovered, the imposition of retentive laws may prove to be a disincentive for excavation as the items cannot be exported, and may be subject to expropriation. To this extent, the retentive laws may promote preservation in situ and lessen the risk of decontextualisation of the cultural heritage by its removal. It may, however, also impede the acquisition of knowledge through excavation. It has also been argued that any attempt to protect archaeological heritage by its legal elevation to a position above that of a commodity, thus attempting to eliminate the market, only results in the market going underground. The protection of the archaeological heritage in this way has led to the creation of a billion dollar black-market.97 Thus, Bator argues that ‘total embargoes are not only impossible to enforce, but actually encourages the illicit market rather than remove it.’98 Furthermore, the damage caused during the excavation of this heritage is attributed to the retention policy itself. Posner, for example, argues that if ‘it were legal to remove [and export] cultural property and sell it, then professionals would take over and use care because antiquities are worth more when their provenance is known and when they are undamaged’.99 While it may be convincingly argued that for some categories of cultural heritage, blanket retentive laws and export prohibitions do not necessarily protect the cultural heritage, it is the sum of the reasons for retention that should prevail, though each, in itself, may provide little justification. Furthermore, there is evidence that the reluctance of States to enforce what they consider to be foreign public law has been questioned,100 and States appear more willing to give effect to other States’ retention laws and seize and return cultural heritage exported contrary to these laws. This includes, for example, the restitution of the second-century BC

96 K. Jore, ‘The Illicit Movement of Art and Artifact: How long will the art market continue to benefit from ineffective laws governing cultural property?’ (1987) 13 Brooklyn Journal of International Law 55, 60, 79–80. 97 J.A.R. Nafziger, ‘International Penal Aspects of Protecting Cultural Property’ (1985) 16 International Lawyer 835; K. Meyer, The Plundered Past, New York: Atheneum, 1974, p. 186. 98 Bator, op. cit. 99 Posner, op. cit., p. 225. 100 See Government of the Islamic Republic of Iran v. Barakat Galleries Ltd [2007] EWHC 705 (Q.B.); [2008] 1 All E.R. 1177.

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statue of Buddha and other artefacts illicitly excavated and exported from Pakistan, returned by US customs;101 the restitution of 262 artefacts dating from the eleventh-century illicitly exported from Burkina Faso and seized by French authorities;102 the restitution of a twelfth-century Khmer sculpture to Cambodia seized by US customs103 and the restitution of 1,500 illicit Afghan cultural objects seized by British customs.104

Return of cultural heritage The return of cultural heritage is a vast and enduring problem for many States, both those that seek to have their cultural heritage returned, and those that have others’ cultural heritage within their museum and other institutions or held by their citizens and residents.105 The reasons for the removal of the cultural heritage from its place of origin are varied, including the suppression of a people by removing their heritage and identity; the assimilation of a people into a dominant culture; the glorification and triumphalism of a dominant society or simply to add to the coffers of a dominant State. A large number of States lost considerable quantities of their cultural heritage during periods of foreign occupation, war and colonisation. Many of these States, including Greece, Turkey, Peru, Bolivia, India, Pakistan, Egypt, Nigeria, Sri Lanka, Ethiopia, Mexico, Iraq, Afghanistan and Iran, continue to actively seek the return of their cultural heritage.106 Disputes continue to rage. The most celebrated and iconic dispute is that of the Parthenon marbles.107 Removed from the Parthenon by Lord Elgin pursuant to a permit (firman) issued in 1801 by the occupying Ottoman Administration, they were sold to the British Museum in 1816.108 While some debate remains as to whether the removal of the marbles was fully in accordance with the scope of the permit, it is generally accepted that they were not removed illegally.109 That their

101 M. Lufkin, ‘Starving Buddha sculpture returned to Pakistan’, The Art Newspaper, March 2007, p. 5. 102 A.B., ‘France gives artefacts to Burkina Faso’, The Art Newspaper, September 2007, p. 9. 103 E. Sharp, ‘Khmer sculpture handed back to Cambodia’, The Art Newspaper, September 2007, p. 9. 104 M. Bailey, ‘Afghan objects seized in Britain will go home’, The Art Newspaper, October 2008, p. 6. 105 For a discussion of examples of cultural heritage which have been returned, particularly from former colonial powers to their former colonies, see Williams, op. cit., pp. 125–7; 106 See generally Greenfield, op. cit., pp. 131–2; R. Chamberlin, Loot: The Heritage of Plunder, London: Thames and Hudson, 1983. See also E. Osser, ‘London and Paris markets flooded with looted Iranian antiquities’, The Art Newspaper, January 2004, p. 9; M. Lufkin, “Antiquities dealer arrested for smuggling Iranian object’, The Art Newspaper, March 2004, p. 9. 107 For a discussion of the use of the term ‘Parthenon’ rather than ‘Elgin’ to describe the marbles, see W.G. Stewart, ‘The Marbles: Elgin or Parthenon?’ (2001) 6 Art, Antiquity and Law 37. 108 For a full account see W. St. Clair, Lord Elgin and the Marbles: The Controversial History of the Parthenon Sculptures, Oxford: Oxford University Press, 1998. 109 D. Gilman, The Idea of Cultural Heritage, Leicester: Institute of Art and Law, 2006, p. 18.

The return, restitution and repatriation of movable cultural heritage 161 removal might have been unethical was raised at the time and hotly debated, with Lord Elgin’s actions attacked from a number of quarters, most famously by Lord Byron, immortalised in his poem ‘Childe Harold’s Pilgrimage’. The controversy, and call for the return of the Parthenon Marbles, culminated in 1982 at the World Conference on Cultural Policies in Mexico, where Greece sought to gain some recognition from attending States that the marbles ought to be returned. The following year, an official request was made for their return, repeated in 1997, and again in the lead-up to the 2004 Athens Olympic Games.110 All requests have failed and the marbles remain in London. Lord Elgin’s motives for the removal of the marbles might have been, to some extent, to protect them. Altruistic motives account for a great deal of the material now in museums in former colonial powers, and undeniably many that might have been destroyed or damaged have been saved, and much has been learnt from their study. The deciphering of the Rosetta stone and the Hammurabi code may not have been achieved had the objects not been removed to a place of safety and study. The call for the return of such cultural heritage is not, however, based upon the morality or ethical nature of their removal from the claiming State, but on the ethical nature of their continued disassociation from their place of origin and the need for their return. Nevertheless, the British Museum has resisted Egyptian requests for the return of the Rosetta stone, as has Berlin’s Altes Museum in regard to Egypt’s request for the return of the bust of Queen Nefertiti.111 Similarly, requests by Turkey for the return of the Pergamon Alter from the Pergamon Museum in Berlin have been unsuccessful. Similarly, the head-dress of Emperor Montezuma, arguably the most important Mexican cultural object, has been held in the Museum of Ethnology in Vienna since 1929 and attempts to have it returned have yet to lead to a successful outcome.112 A great deal of displaced cultural heritage was, however, taken by force and not necessarily for purposes of protection, but often in retaliation for the actions of an opposing belligerent or simply for personal gain. Prior to the development of international law to prohibit such action, which only took any concrete form at the end of the nineteenth century, any removal of cultural heritage before then was deemed legitimate. Neither the removal of cultural heritage by the armed forces representing the State, nor looting by soldiers and government officials in their individual capacities was regarded as illegal. As such, though some material may be found in State collections and museums, much of this material entered the legitimate art and antiquities market, and since good title could be transferred, continues to circulate freely. During the Second Opium War in 1860, for example, British and French Forces sacked and destroyed the Summer Palace. Amongst the vast amount of cultural heritage items taken were 12 bronze animal heads representing the Chinese zodiac. When two of these were placed on auction in

110 Ibid., p. 17. 111 M. Bailey, ‘Egypt asks British Museum for Rosetta stone’, The Art Newspaper, June 2007, p. 8. 112 Bengs, op. cit., p. 511.

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2008, the Chinese government sought to have them returned to China. Since these were legitimately on the market, however, the Chinese government failed to prevent the sale going ahead, and the only mechanism for their successful return lies either with simply purchasing them on the market, or negotiating a return from the private owners.113 Other putative expeditions have also resulted in the displacement of cultural heritage which have yet to be returned. In 1866, for example, a French punitive expedition in Korea removed 297 Royal Korean archives, which were deposited in the national Library of France, where they remain.114 Similarly, in 1868, a punitive expedition by British forces against Ethiopia resulted in the looting of a vast amount of material, so much that it took ‘15 elephants and 300 mules to carry off the loot’.115 While a few individual items were returned over the years, much of this material remains in a number of British museums.116 The experience in Ethiopia was repeated on a number of occasions in Africa. In 1874, for example, a British punitive expedition against the Ashanti resulted in the sacking of the Ashanti capital and the removal of almost all of the royal gold regalia. Most is still found in the British Museum and Wallace Collection Museum.117 Similarly, the 1897 punitive expedition against Benin resulted in the wholesale removal of the Benin bronzes from the capital. These were subsequently donated to various museums or entered the art and antiquities market. While Nigeria was able to purchase some of these on the open market, it still has only the third largest collection of Benin bronzes, with the Dahlem in Berlin and British Museums having the largest collections. Cloaked in the mantle of legality that applied over 100 years ago, the vast majority of Benin’s bronzes have yet to return to Benin.118 Not all displaced cultural heritage is asked to be returned, as political realities may prevent this. For example, at the end of the Third Chinese Revolutionary War in 1946, Chiang Kai-shek withdrew his forces to the island of Taiwan, taking

113 Five others have already come up for sale: the head of the boar (Sotheby’s 1987), ox (Christie’s 2000), monkey (Christies 2000), tiger (Sotheby’s 2000) and horse (Sotheby’s Hong Kong 2007). Three were bought by a Chinese government conglomerate in 2000 and returned to China while the fourth was purchased by a private Chinese businessman, and though returned to China, is held by him as his private property. See ‘China pressures Christie’s to hand over sculptures’, International Herald Tribune, 17 February 2009; ‘American Chinese collectors urge boycott of Christie’s’, People’s Daily Online, 25 February 2009. 114 J. Kim, ‘The Oe-Kyujanggak archives’ (2002) 7 Art Antiquity and Law 65; Shyllon, op. cit., p. 135. 115 Quoted in Shyllon, op. cit., p. 134; M. Bailey, ‘Ethiopia moves for Maqdala treasures’, The Art Newspaper, November 2008, p. 26. 116 An important manuscript was returned by the British museum in 1872, and the Tewodros crown was returned in 1924. Shyllon, op. cit., pp. 138–9. 117 Greenfield, op. cit., pp. 116–18. 118 Ibid., pp. 118–23; Shyllon, op. cit., pp. 135–7. The first comprehensive collection exhibition of the Benin bronzes, bringing together the collections of these, and many other institutions, took place in 2007 and toured internationally. M. Bailey, ‘Benin bronzes finally united’, The Art Newspaper, June 2007, p. 13.

The return, restitution and repatriation of movable cultural heritage 163 with him 11,729 items from the Central Museum of China. Given the political context in which China refuses to recognise the independence of Taiwan, no request has been made for their return.119 Whilst disputes continue to rage, solutions and successful outcomes have been achieved. During the 1960s and 1970s, with the process of decolonisation in full swing, a number of colonial powers returned cultural heritage to their former colonies. In 1962 Cambridge University returned a number of cultural heritage items to Uganda when it became an independent state, while in 1964, the Victoria and Albert Museum returned the Mandalay regalia to Burma. In 1968 France returned over three hundred paintings to Algeria while Belgium, in 1970, returned forty artefacts to newly independent Zaire, which was followed in 1977 with the return of thousands more.120 The return of the Icelandic manuscripts from Denmark to Iceland in 1971 has been cited as a pre-eminent example of the successful restitution from a colonial power to its former colony.121 Moreover, the return of these manuscripts has not resulted in the wholesale call for the return of all Icelandic manuscripts to Iceland as feared. As such, numerous manuscripts continue to be held in other institutions, including approximately 300 manuscripts in the Royal Library in Stockholm, 250 in the British Museum, 150 in the Bodleian Museum in Oxford, 100 in the National Library of Scotland, 50 in the Uppsala University Library in Sweden and 45 in the Harvard University Library in the US.122 Other high profile requests have similarly been successful, including the return of the crown of St. Stephen to Hungary and the Afo-Kom to Cameroon.123 Cultural heritage taken during wars, occupations and punitive expeditions have also been returned. With considerable fanfare, Italy returned the 2,000 year old Obelisk of Aksum to Ethiopia in 2005. The Obelisk had been removed, together with vast quantities of other cultural material, by Italian forces after their invasion of Ethiopia in 1935. At the end of the Second World War, Italy had agreed to return all material to Ethiopia, but did so exceptionally slowly, with the Lion of Judah statue returned in 1969 and the throne of Menilek only in 1982. Reluctant to return the obelisk, Italy then claimed that it had become Italian cultural heritage by naturalisation given the length of time it had stood in Rome.124 In the face of considerable derision, Italy abandoned this argument and finally capitulated. At times, the return of cultural heritage has, in fact, nothing to do with State action at all, but the heritage in question has some specific importance to a

119 120 121 122 123

Gruber, op. cit., p. 272. Greenfield, op. cit., p. 5. Ibid., pp. 12–41. Ibid., p. 17. Other examples include the return of carved stone taken from the Temple of the Cross to Mexico by the Smithsonian Institute, see E. Herscher, ‘International Control Efforts: Are There Any Good Solutions?’ in P.M. Messenger (ed.), The Ethics of Collecting Cultural Property: Whose Culture? Whose Property?, Albuquerque: University of New Mexico Press, 1989, p. 117. 124 Shyllon, op. cit., pp. 137–8.

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particular nation and its return to the territory of that nation takes on particular importance. Recently, for example, Mahatma Ghandi’s personal possessions, including his glasses, sandals, pocket watch and eating bowl were sold by a private American collector at auction. As private possessions, their sale on the open market was uncontroversial, but their importance to the State of India called for their ‘return’. This was achieved by their purchase for US1.8 million by an Indian businessman. While they will therefore physically return to India, it is not clear whether they will be donated to the State or held in private ownership.125 The universal museum As a response to the growing call for the return of cultural heritage to their places of origin, a number of prominent museums, including the British Museum, Louvre, State Hermitage Museum, Prado, Rijkmuseum, and the major US institutions such as the J. Paul Getty Museum, the Guggenheim Museum, Art Institute of Chicago and the Metropolitan Museum of Art, New York, issued a joint Declaration in 2002 on the concept of the ‘universal museums’. At the heart of the concept of the ‘universal museum’ is the notion that these institutions fulfil a role in cultivating respect for cultural diversity and encouraging cultural interchange through the exhibition and study of the cultural heritage of all peoples. Indeed, this principle is recognised in the 1970 Convention; its preamble declares that ‘the interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations’.126 The 2002 Declaration reflected this in stating that ‘Museums are agents in the development of culture, whose mission is to foster knowledge by a continuous process of reinterpretation. Each object contributes to this process. To narrow the focus of museums whose collections are diverse and multifaceted would therefore be a disservice to all visitors’.127 Whilst this is true to some extent, it is also true that most of the visitors to the ‘universal museums’ do not come from many of the poor developing States whose cultural heritage is to be found displayed. Perhaps more telling is the inclusion in the declaration of a statement which seeks acknowledgement ‘that museums serve not just the citizens of one nation but the people of every nation’. This is really an argument against any form of return of cultural heritage to one people; the fear arising that to return one sets a precedent which will result in the return of all.128 The British Museum in particular exemplifies the position taken with regard to the return of cultural

125 126 127 128

S. Smith, ‘Ghandi glasses to go home’, Courier Mail, 7 March 2009, p. 48. Second recital, 1970 Convention. Reprinted in (2004) 1 ICOM News, p. 4. See also K. Singh, ‘Do we really want the freer circulation of cultural goods?’, The Art Newspaper, June 2008, p. 29; C. Chippindale, ‘Antiquities as political dynamite’, The Art Newspaper, June 2008, p. 49.

The return, restitution and repatriation of movable cultural heritage 165 heritage to its place of origin. The general position taken is that the museum will not return any cultural heritage unless it had not been obtained legally. The legality is that which appertained at the time of its acquisition. On this basis, for example, the Parthenon marbles and the Benin bronzes were legally obtained and will not therefore be returned. The 2002 Declaration on the Universal Museum, while stimulating considerable debate129, has done little to address the issue of return of cultural heritage to its place of origin, and contributed to a polarisation of the positions of States of origin and the important western importing States. It is often seen as underpinning the refusal of such institutions to return cultural heritage to their place of origin.130 The return of human remains The return to ethnic and indigenous communities of human remains found in museums and universities throughout the world has been a complex and emotionally charged issue for many years. In States such as the US, Canada, Australia and New Zealand, these issues are of particular political importance and subsumed with larger political issues associated with indigenous peoples’ rights and human rights generally.131 In this sensitive and complex arena, the very role of archaeology and cultural heritage management is also subject to scrutiny and debate.132 In 1989 the World Archaeological Congress adopted the Vermillion Accord which supported the rights of indigenous peoples to the remains of their ancestors. Since then, the return of human remains has gathered pace and museums have generally been more willing to repatriate human remains than cultural heritage. This distinction between human remains and cultural heritage is not always recognised and has given cause to some reluctance to consider very old remains, particularly mummified remains, as anything other than an archaeological artefact. Nevertheless, considerable aboriginal remains have returned to many States, particularly Australia, Canada, New Zealand and South Africa.133

129 See for example, P. Schuster, ‘The Treasure of World Culture in the Public Museum’ (2004) 1 ICOM News, p. 4; G. Abungu, ‘The Declaration: A Contested Issue’ (2004) 1 ICOM News, p. 5. 130 L. Harris, ‘Louvre refuses Turkish request for Ottoman tiles’, The Art Newspaper, February 2007, p. 20. 131 See generally C. Fforde, J. Hubert and P. Turnbull (eds) The Dead and their Possessions: Repatriation in Principle, Policy and Practice, London: Routledge, 2002; E. Barkan and R. Bush, Claiming the Stones, Naming the Bones: Cultural Property and the Negotiation of National and Ethnic Identity, Los Angeles: Getty publications, 2002; D.H. Thomas, Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity, New York: Basic Books, 2000. 132 See L. Smith, Archaeological Theory and the Politics of Cultural Heritage, Abingdon: Routledge, 2004; M. Bailey, ‘Aborigines sue over human remains’, The Art Newspaper, March 2007, p. 22; M. Bailey, ‘Natural history Museum returns Aboriginal remains’, The Art Newspaper, June 2007, p. 18. 133 M. Bailey, ‘Natural history Museum returns Aboriginal remains’, The Art Newspaper, June 2007, p. 18; J. Kaufman, ‘Filed museum returns Maori skulls’, The Art Newspaper, October 2007, p. 18; Greendfield, op. cit., pp. 132–3; C. Forrest, ‘The Protection of Cultural Heritage In South Africa

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The 1970 Convention The adoption in 1970 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was the immediate response to the concern with the growing market demand for cultural heritage and the resulting illicit trade. 134 The Convention came into force on 24 April 1972, three months after the deposit of the third instrument of ratification.135 The Convention is the most important international instrument dealing with the problem of the illicit movement of cultural heritage. It was designed to implement a system of import and export controls that would ensure that the illicit traffic in cultural heritage would be stemmed. Its structure and content reflects the protracted and complex negotiations and the delicate balance reached, and requires some consideration in order that the conventional provisions are understood in the context of the forces at play in the late 1960s. The negotiation history Developing countries rich in cultural heritage initiated the process of developing an international protective regime.136 The regime envisaged was the prohibition of all unauthorised exports and imports of cultural heritage. This was reflected in early drafts of the Convention, when developed importing States’ involvement was limited.137 The prohibition on importation of cultural heritage without the exporting State’s approval (ordinarily through an export permit) threatened the free market in cultural heritage, and caused concern to some developed importing States that wished to protect their art and antiquities market. While the US did enter the negotiating process at a late stage, other developed importing States did not engage in the process at all, including the UK and Switzerland. The effect of the US participation, however, was profound. With the US free market approach diametrically opposite to the regime envisaged by the developing exporting States,

134

135 136

137

and its Implementation of the 1970 UNESCO Convention’ (2005) 10 Art Antiquity and Law 1, 19–20. For an overview of the Convention see R. Abramson and S. Huttler, ‘The Legal Response to the Illicit Movement of Cultural Heritage’ (1973) 5 Law and Policy in International Business 932; R. Goy, ‘The International Protection of the Cultural and Natural Heritage’ (1973) 4 Netherlands Yearbook of International Law 117, 126; G. Reichelt, ‘International Protection of Cultural Property’ (1985) 1 Uniform Law Review 43, 43–79. Article 21. Mexico and Peru, in 1960, were the first States to propose that UNESCO adopt an international convention to address the problem of illicit trafficking in cultural heritage. This proposal was supported by many other South and Central American States. K. Jote, International Legal Protection of Cultural Heritage, Stockholm: Juristforlaget, 1994, pp. 196–7. The US was not a member of the special committee established in accordance with UNESCO General Conference Resolution to draft the Convention. The first draft, issued in August 1969, did not therefore have any US input. Abramson and Huttler, op. cit., p. 950.

The return, restitution and repatriation of movable cultural heritage 167 a resulting compromise was difficult to achieve. Developed importing States also recognised that, within UNESCO, the exporting States had a substantial voting majority, and their views could dominate the agenda. However, the US did gain a significant advantage during negotiations as the global political climate of the late 1960s favoured increased US participation in international organisations and the fostering of better relations with developing States.138 There was also a clear desire to include the US in the negotiations if the Convention was ever to be effective. Armed with a large, well-prepared delegation, the US exerted considered influence on the final text of the Convention.139 This influence, however, did not necessarily achieve a workable compromise, but rather introduced amendments, and gained concessions that have ultimately obscured the meaning of the Convention.140 The preamble’s guiding principles At its core, the principle upon which the Convention is based is the recognition that ‘cultural property constitutes one of the basic elements of civilization and national culture’.141 This principle justifies the very adoption of a convention that protects cultural property and underscores the fundamental importance of cultural property to each culture. Given this emphasis on the importance of the cultural property to each national culture, the preamble then recognises that it is therefore ‘incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export’.142 Because cultural property is one of the basic elements of civilisation and national culture, it can play an important role in facilitating cultural understanding amongst the nations of the world, and contribute to cultural tolerance, understanding and international peace. The interchange of cultural property among nations is therefore specifically encouraged in the preamble. It provides that such exchange of cultural property ‘for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations’. To maximise the benefit of such exchange the cultural property must embody the fullest possible information regarding is origin, history and traditional setting.143 Only then can its true value be appreciated.

138 Abramson and Huttler, op. cit., pp. 956–7. 139 Jote op. cit., p. 201. Jote states that ‘[s]ince it was mainly lawyers from the developed countries that played an active role in the preparation of the text, the final result did little to protect the interests of developing nations in Africa, Asia and Latin America, the major victims of illicit traffic in cultural heritage’. 140 O’Keefe (2007) op. cit., p. 7. 141 Third recital. 142 Fourth recital. 143 Third recital.

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However, this true value, and its importance in promoting understanding between nations, is undermined by the illicit import, export and transfer of ownership of cultural property.144 The Convention is primarily designed to give cultural property its ‘true value’ by addressing these threats. The mechanism by which each State is to do so is, unfortunately, rather vaguely set out in the preamble. Whilst the preamble recognises that it is ‘incumbent on each State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export’, it also provides that ‘to avert these dangers, it is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage’.145 The reference to a moral obligation, rather than a duty or obligation in a normative sense, as embodied in the conventional provisions, is unfortunately rather weak. So too is the preambular principle that ‘as cultural institutions, museums, libraries and archives should ensure that their collections are built up in accordance with universally recognized moral principles’.146 In an international convention which directs State’s actions, this call directly to the cultural institutions is unfortunate, since the nature of the Convention can do nothing more than suggest that they adhere to some set of moral guidelines. The preamble ought to be confined to the principles that will underpin State action, and call on States to ensure that these institutions adhere to such a body of moral guidelines, or preferably, require that normative provisions in this respect be introduced. The preambular principles centre on the actions of each State concerning that State’s ‘cultural property’. It provides little in the way of recognising the importance of protecting other States’ cultural property. It merely provides that to avert the danger posed to cultural property, States ought to become increasingly alive to the moral obligations to respect the cultural property ‘of all nations’.147 Again, reference merely to a moral obligation undermines the inherent strength of this guiding principle. Nevertheless, there is recognition that ‘the protection of cultural property can be effective only if organized both nationally and internationally among States working in close co-operation’148, thus justifying the adoption of the 1970 Convention. Definition of cultural property The Convention is structured around the principle that the cultural property of each State ought to be protected, and that it is for each State to determine what cultural property this should encompass. The Conventional provisions are, however, also a compromise between importing and exporting States. It therefore

144 145 146 147 148

Seventh recital. Fifth recital. Sixth recital. Fifth recital. Eighth recital.

The return, restitution and repatriation of movable cultural heritage 169 leaves some scope for each State to determine the content of this cultural property within the confines determined by the compromise. The first definitional confine, or criteria, requires that the cultural property to be protected is of importance, from a religious or secular perspective, for archaeology, prehistory, history, literature, art or science and which belongs to one or more of a number of categories.149 The categories are: a b

c d e f g

Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest; property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; elements of artistic or historical monuments or archaeological sites which have been dismembered; antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; objects of ethnological interest; property of artistic interest, such as: (i)

pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; h

i j k

rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; postage, revenue and similar stamps, singly or in collections; archives, including sound, photographic and cinematographic archives; articles of furniture more than one hundred years old and old musical instruments.

For the purposes of the Convention, cultural property must fall within one of these categories. There appears to be no direct relationship between the categories and the qualifier that requires the cultural property within these categories to be of importance for archaeology, prehistory, history, literature, art or science.150 The latter is implied by the very nature of the content of the categories. It is also

149 Article 1. 150 O’Keefe (2007) op. cit., p. 35–6.

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the case that the categories are overlapping and a particular cultural object might fall within one of more categories at the same time. However, the importance of the cultural property in questions for archaeology, prehistory, history, literature, art or science is important in relation to the second criteria to be applied in limiting the scope of the cultural property that falls within the 1970 Convention’s protective regime. That is, that each State is required to ‘specifically designate’ that cultural property which is of importance to archaeology, prehistory, history, literature, art or science. This requirement that the cultural property subject to the Convention be specifically designated allows both exporting and importing States to effectively regulate the movement of that cultural property. It is, however, the exporting State which is required to make the designation, and since the underlying conventional principle rests the determination of the content of the cultural property with the exporting State, or State of origin, it is that State which is to determine the mechanism for the specific designation. It might specifically designate general classes or categories of cultural property that will be subject to the Convention’s protective regime or indentify only individual objects. Australia151 and Canada,152 for example, have used broad categories of cultural property, similar to those set out in the definitional article of the Convention, with specific monetary amounts, or age limits as qualifiers. The requirement of ‘specific designation’ should not require that only objects that have been catalogued or individually identified be included. This would remove undiscovered and unexcavated cultural property from the scope of the Convention. It is this latter class of cultural property, more so than the theft and pillage of private or public collections, which requires urgent international action. This conventional definition of cultural property was a delicate compromise reached during negotiations, and as such is constantly subject to criticism and reinterpretation by States (and commentators) that would have preferred that their initial positions were better reflected.153 National cultural property The delicate balance reached in defining cultural property for the purposes of the Convention was necessary in order to ensure that importing States would be able to recognise and give effect to the claims of exporting States in relation to what constitutes an illicit movement of cultural property. Within the confines of the limiting criteria imposed within article 1, it lies with the exporting State to determine what constitutes its cultural property. Nevertheless, importing States were concerned that exporting States would somehow abuse this power by declaring individual items, or categories, of cultural property, as their national property,

151 Protection of Movable Cultural Heritage Act (Cth) 1986. 152 Cultural Property Export and Import Act 1975. 153 Bator, op. cit., p. 377; Valentin, op. cit., p. 108.

The return, restitution and repatriation of movable cultural heritage 171 and therefore subject to export control, which was not warranted. An attempt to identify the circumstances in which a State could claim certain cultural property as its national property was therefore made in article 4. Somewhat misplaced in that it would appear more logical to have followed the definitional article, article 4 provides that: The States Parties to this Convention recognize that for the purpose of the Convention property which belongs to the following categories forms part of the cultural property of each State: a

b c

d e

cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory; cultural property found within the national territory; cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property; cultural property which has been the subject of a freely agreed exchange; cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property.

Essentially article 4 does little more than legitimise certain claims to a national cultural property. These are largely claims relating to cultural property that originate from other States, or are made by citizens of other States, but which are in the territory of the claiming State. The cultural property of others, but which has entered the claiming State by way of a freely agreed exchange, through an authorised scientific mission, gift or purchase might therefore all be the cultural property of the claiming, export restricting State. Importantly, this claim to a nation property is for the purposes of this Convention, that is, for the purposes of addressing the illicit trade. As such, it is not actually concerned with claims of ownership or of actual property values.154 It merely acts as a mechanism to justify export restrictions of such property from a State even though that property originates from a different State. At least for article 4(c), (d) and (e), key to the scope of the categories is the recognition that the cultural property in question has reached the claiming State legitimately; that is by a freely agreed exchange, or with the consent of the competent authorities of the country of origin. Just whether the condition has actually been met will only be judged in each individual case. It will, however, apply to many cultural property objects that are the subject of request for return from States of origin. An attempt had been made to include a broader category that

154 O’Keefe (2007) op. cit., p. 46.

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would address all cultural property subject to requests for return of cultural property. An early draft of the Convention had included a sixth provision which provided that ‘cultural property acquired by a State or one of its nationals before this Convention entered into force for the State in question’.155 This would have included all those examples of cultural property subject to request for return discussed earlier, such as the Parthenon Marbles, the Benin bronzes, etc. In the context of the 1970 Convention, and given that article 4 is simply an assertion for the purposes only of this Convention, the inclusion of this sixth provision would not have caused any difficulties. It would simply have allowed States to recognise that for the purposes of controlling the illicit trade, including export, of cultural property, the States which currently possess these cultural property items can subject them to their control. Yet such an explicit assertion of these items being recognised by other States as the holding States national cultural property was simply too unpalatable, and potentially undermining continued claims for the return of cultural property. The broad scope of what had been contained in the sixth provision may, however, be contained in article 4(b), which quite simply requires that States recognise that ‘cultural property found within the national territory’ of a State may be considered the latter State’s cultural property. A broad interpretation of ‘found’ might simply refer to all cultural property currently ‘found in’, or situated in, the claiming State. O’Keefe, however, interprets ‘found’ narrowly, as in ‘discovered’ or ‘excavated’ in that State, and primarily applying to ‘archaeological remains of neighbouring or extinct cultural groups within a territory now belonging to a different cultural group’.156 Given the context of the deletion of the sixth provision, this interpretation is probably that intended. However, since the claiming State has, by the terms of the Convention, the discretion to determine which categories of cultural property it designates for the purposes of the Convention, a broad interpretation of article 4(b) in accordance with the ordinary meaning of its terms, cannot be discounted. Article 4 is not only concerned with cultural property originating in other States, but also that created in the claiming State by nationals of other States. This concern appears to relate particularly to works of artists, writers and musicians. For example, many States might wish to restrict the export of certain works of art created not only by their citizens, but by non-citizens. The latter claim might merely be because of the economic value of that art. To limit the ability of a State to claim that in the latter circumstances the particular art was of national importance, article 4 set out the circumstance in which a non-citizen might have some connection with the claiming State. Importantly, it does not require that this connection be made, but only that, if it is made, other States will respect the export limiting State’s justification that the particular art in question is its national property and subject to its export control. This does not, however, prevent more than one State

155 Ibid. 156 Ibid., p. 45.

The return, restitution and repatriation of movable cultural heritage 173 claiming a particular connection with that artist. Since, however, this assertion is for the purposes of the Convention, it effectively is limited to the claim of the State which has that cultural property within its territory and can therefore exert control over that property. This article merely acts to justify this control. Since the State in which any property is found has, by the terms of the Convention, the right to determine the categories of cultural property that will be subject to the Convention, this article merely acts to confine the scope of the Convention by requiring States to recognise some justifications for the inclusion of certain classes of cultural property within those restricted categories. While Bator, for example, considers article 4 to be ‘particularly unintelligible’ and to ‘have no operative effect’,157 it does play a part in ensuring the system of mutual recognition of each State’s powers to exert control over cultural property found within their territories, including export, by eliminating debate over the actual property value and origin of the cultural property in question. The ability of a State to declare certain cultural property as its national property is supplemented by a curious, ambiguous, and misplaced provision that addresses the inalienability of certain cultural property, much of which will be national cultural property. Article 13(d) provides that: States Parties to this Convention also undertake, consistent with the laws of each State, to recognize the indefeasible right of each State Party to this Convention to classify and declare certain cultural property as inalienable which should therefore ipso facto not be exported, and to facilitate recovery of such property by the State concerned in cases where it has been exported. This provision is inspired by the civil law system of inalienability which makes cultural property held in public institutions State property that can never be legally acquired by any other person or entity. Legal ownership cannot be transferred or acquired by way of adverse possession and, importantly, the State can always claim back such cultural property in its territory at any time, and irrespective of any intervening transactions. No statute of limitation applies, nor are bona fide purchasers given any recourse, in relation to inalienable cultural property. While States such as France and Spain provide for inalienability of certain cultural property, a number of other States, such as Mexico, extend this to include blanket inalienability of cultural property such as undiscovered archaeological material.158 To many common law States, such as the US and UK, such a concept in unknown. What this article appears to do is little more than require some State to recognise that such a concept exists in another State. So, for example, a State in which inalienable cultural property of another State was imported, sold to a bona fide purchaser and then exported back to the State of origin, the former State would recognise that the State of origin could claim the cultural property and disregard

157 Bator, op. cit., p. 377. 158 O’Keefe (2007) op. cit., p. 87.

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the transfer of ownership which took place in the former State.159 Since the State of origin can do so in any event, this recognition appears to be an attempt to give some form or moral recognition to what is probably already a recognised fact. O’Keefe, however, suggests that this article may be interpreted to require a State to give effect to another State’s claim of inalienability. That is, a State which has material subject to a claim of inalienability by a State of origin would give effect to this claim against any other claims, notwithstanding the provision of any statute of limitation or transfer of ownership governed by the lex rei stiae.160 However, again, whether such an interpretation will be taken will depend entirely on each particular State, and to the extent that such an interpretation is consistent with the existing laws of that State.161 Making illicit the export and import of cultural property At its core, the Convention addresses the illicit export, import or transfer of ownership of cultural property. The essence of the problem is the fact that in many States, particularly developing States, the national legislation which deems certain excavations, possession and export of cultural property illicit, is difficult to enforce once the property had left the borders of that State. Not only are there considerable evidentiary obstacles to overcome, but other States would, in many circumstances, simply not give effect to the laws of the State of origin. It was the need for such recognition that the Convention was adopted. To this effect article 2 provides: The States Parties to this Convention recognize that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural property of the countries of origin of such property and that international co-operation constitutes one of the most efficient means of protecting each country’s cultural property against all the dangers resulting therefrom. The preamble required that, in the face of the dangers caused by the illicit import, export and transfer of ownership to cultural exchange and understanding between nations, each State Party was to be cognoscent to the moral obligations in respect of the cultural property of all nations. This article gives further content to this preambular principle by specifically requiring that States Parties recognise that the illicit import, export and transfer of ownership of cultural property is one

159 This fact scenario is similar to that in Winkworth v. Christie, Mason and Woods Ltd [1980] CH 496, but the outcome would be quite opposite given that the UK does not itself give effect to the concept of inalienability. 160 See for example Government of the Islamic Republic of Iran v. Barakat Galleries Ltd [2007] EWHC 705 (Q.B.); [2008] 1 All E.R. 1177. 161 The US understanding of article 13(d) lodged with its instrument of ratification ensured, consistent with its existing law, that no expanded interpretation was to be made.

The return, restitution and repatriation of movable cultural heritage 175 of the main causes of the impoverishment of the cultural property of the countries of origin. By becoming a party to the Convention, States specifically recognise this fact, and to the fact that international co-operation is the most effective mechanism for dealing with this illicit trade. States Parties therefore acknowledge that the burden of preventing the illicit trade cannot be placed at the foot of the States of origin alone and that all States need to co-operate in addressing the problem. Article 2 does more than merely draw attention to the seriousness of the problem, but binds States to a set of principles that inform the Conventional duties undertaken.162 Article 2(2) further provides that, to this end ‘States Parties undertake to oppose such practices with the means at their disposal, and particularly by removing their causes, putting a stop to current practices, and by helping to make the necessary reparations’. This article imposes an obligation on States to oppose such practices with the means at their disposal. This is not merely rhetorical,163 nor ‘undertakings of a political nature’164, but an undertaking to act. It is true that the article does not specify how each State is to act, and that this is conditional on the means at each State’s disposal, and thus making it impossible to enforce this obligation, it nevertheless imposes an obligation to act. While the article concludes that such acts ought to include those that remove the causes of the illicit trade, including stopping current practices, these will be entirely dependent on the means available to each State. O’Keefe suggests a number of ways in which a State could remove the causes of the illicit trade and stop current practices, such as through educational programmes, providing alternative sources of income for local populations involved in illicit excavations and strengthening the requirements for provenance details in the art and antiquities trade.165 The final suggested action by States Parties is to help to make necessary reparations. The use of the term reparations is unfortunate. As O’Keefe explains, the term is used in an international law sense to refer to a breach by one State of an international norm which affects another State; the latter then being entitled to reparations for the wrong committed.166 Since the obligation in article 2(2) does not necessarily give rise to a wrong that will affect another State, reparations will not necessarily arise. Further, reparations will result from the breach of an international norm, and as such, there is no avenue for one State to ‘help’ another with reparations. Reparations are imposed as a matter of international law. It is likely that the term ‘return’ or ‘restitution’ was intended, in that one State is encouraged to act in a way that allows for illicitly traded cultural property to be restored to the State of origin. This article is important not only because developed importing States that are a party to the Convention acknowledge the problems faced by developing

162 163 164 165 166

O’Keefe (2007) op. cit., p. 39. Bator, op. cit., p. 377. Chamberlain (2002), op. cit., p. 242. O’Keefe (2007) op. cit., p. 40. Ibid., p. 39.

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exporting States, but more importantly, that they undertake to oppose those practices which are subject to their control and which contribute to the illicit trade. While importing States too readily highlight problems in developing exporting States, such as poverty, corruption and maladministration, as the major causes of the illicit trade, it is also evident that the demand in developed States’ art and antiquities markets drives the trade, and the Convention requires States Parties to address this cause and stop current practices that contribute to the illicit trade. The export and import regime At the centre of the illicit trade in cultural property is the fact that cultural property is either stolen from institutions such as museums, illegally removed from monuments, temples, churches and other immovable property, or illegally excavated from known or unknown archaeological sites and then clandestinely moved out of the State of origin. Once out of the territorial jurisdiction of the State of origin, the cultural property is then free to enter the art and antiquities market in other States. Whilst the Convention imposes obligations on the State of origin to protect cultural property found within its territory, the Convention essentially is an attempt to address this trade by regulating both the export and import component of this movement of cultural property. The most effective way to do this is to make the import of any cultural property which has been illicitly exported, illegal. That is, the illegality of any of the acts relating to that property in the State of origin is simply recognised in the receiving, or importing, State. Unfortunately, the resulting Conventional regime does not necessarily provide such an effective regime. During negotiations, a number of States were concerned with the extent of the limitations on imports that might arise from such a regime, and sought to impose greater duties on the exporting State to regulate the illicit trade, than on the importing States. In seeking a compromise between the positions of importing and exporting States, the resulting provisions were drafted in a manner which has allowed for a great variety of interpretations. At the core of this regime is the simple assertion, in article 3, that the ‘import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit’. This article has been regarded, on the one hand, as possibly the most important, core provision in the conventional regime,167 and, on the other, as having no legal effect at all.168 The former view rests on an interpretation that requires States Parties to render imports illicit when their export is illicit.169 That is, if the export of cultural property is effected contrary to the provisions adopted under this Convention by States Parties, then that export will be illicit, and if the export of

167 O’Keefe (2007) op. cit., p. 41. 168 Bator, op. cit., p. 377; Abramson and Huttler, op. cit., p. 961. 169 O’Keefe (2007) op. cit., p. 41.

The return, restitution and repatriation of movable cultural heritage 177 cultural property is illicit under the provisions adopted under this Convention, then the import will be illicit. This article is thus interpreted on its own terms, creating obligations in its own right.170 The interpretation that article 3 has no, or little effect, arises due to the emphasis on the phrase ‘effected contrary to the provisions adopted under this Convention’, and thus considers that the illicit nature of the import is not to be determined by article 3 as such, but by the implementation of other provisions of the Convention, particularly articles 6 and 7. Article 3 then becomes nothing more than a reference to article 7 for the purposes of considering the illicit nature of the import, and article 6 for the illicit nature of the export. Between these polar interpretations lie a number of other interpretations. Goy, for example, simply asserts that article 3 requires States to regulate export and import, though the extent of the latter will be dependent on each State.171 An expanded interpretation of the export and import regime Since an important part of the illicit trade in cultural property is its exportation from a State contrary to its laws, the Convention requires, in article 6, that States introduce a certificate that will evidence the legality of any export; the absence of which will evidence illegality. Article 6 provides, in full: The States Parties to this Convention undertake: a

b c

to introduce an appropriate certificate in which the exporting State would specify that the export of the cultural property in question is authorised. The certificate should accompany all items of cultural property exported in accordance with the regulations; to prohibit the exportation of cultural property from their territory unless accompanied by the above-mentioned export certificate; to publicise this prohibition by appropriate means, particularly among persons likely to export or import cultural property.

Since the Convention requires an export certificate to accompany any export, article 3, read with article 6, would render any importation of cultural property without the export certificate from the State of origin, illicit. The actual cultural property that would be subject to this regime would naturally be that which the State has ‘specifically designated’ as such by way of article 1. It is argued that the very inclusion of this article supports only the wide interpretation of article 3 since there would be no need to address the export certificate if only certain forms of import were addressed in the Convention.172 This wide interpretation is supported

170 Ibid., p. 41 171 Goy as quoted in O’Keefe (2007) op. cit., p. 42. 172 O’Keefe (2007) op. cit., p. 54.

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by State practice. Australia, for example, has implemented this broad interpretation173, while Canada has done so only in regard to other States Parties to the Convention.174 This is certainly to be the preferred interpretation if cultural property is to achieve full protection. The Convention does not require that each State effectively police its borders.175 This may be the case, such as in the Czech Republic, where a valid export permit for all items entering the republic is required at the border. Some States have been concerned that the Convention would require customs to undertake such a rigorous and elaborative border control system, but this is not required by the Convention. Both Canada and Australia, for example, will take action once an exporting State notifies it that it believes that such property is in that State and authorities then take action. A narrow interpretation of the export and import regime A comprehensive and binding regime of export certificates is only really effective if it is going to be recognised by all other States for the purpose of making imports without such a certificate illegal. This might have been achieved by simply inserting another provision in article 6 which required importing States to prohibit, and recognise as illicit, any import not accompanied by an export certificate from the State of origin.176 That such a provision was not included suggests that the compromise was to establish a comprehensive export certification scheme but leave the extent of the importing scheme to a variety of possible State interpretations and implementations. As such, the inclusion of article 6 will encourage a comprehensive scheme without necessarily requiring States to declare all imports without a certificate illegal. This is certainly an unfortunate compromise in that is allows for a variety of interpretations that undermines the effectiveness of the regime. Indeed, both the US and UK, with vibrant art and antiquities markets, have taken such an approach. While article 6 provides that States undertake to establish a system of export permits, without which cultural property cannot be exported from their territory, a more limited import regime is provided for in article 7. Furthermore, article 7 also address the illicit transfer of ownership of cultural property in

173 Protection of Movable Cultural Heritage Act 1986 (Cth). See further C. Forrest, ‘Australia’s Protection of Foreign States’ Cultural heritage’ (2004) 27 University of New South Wales Law Journal 605. 174 Cultural Property Export and Import Act, 1975 provides that Canada will recognise the export laws of reciprocating States, either by way of a bilateral or a multilateral treaty. See D.A. Walden, ‘Canada’s Cultural Property Export and Import Act: The Experience of Protecting Cultural Property’ (2005) Special Issue University of British Columbia Law Review 203. 175 See for an extreme interpretation of any obligation to make illicit exports and illicit imports, Bator, op. cit., pp. 329–30. 176 Such a provision had been included in an original draft of the Convention, but was replaced by article 7 as proposed by the US delegation. Abramson and Huttler, op. cit., p. 951.

The return, restitution and repatriation of movable cultural heritage 179 certain circumstances. In this regard, article 7(a) provides that States Parties undertake: To take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned. Whenever possible, to inform a State of origin Party to this Convention of an offer of such cultural property illegally removed from that State after the entry into force of this Convention in both States. Article 7(a) contains a number of limitations with regard to effectively addressing the illicit trade in cultural property. First, it does not actually address the import of illicitly exported cultural property. It merely prevents the acquisition of such material. To this extent, there is no import control, and does not require, for example, that it be made an offence to import such material. Second, it does not apply to the acquisition of all such material, but only the acquisition by ‘museums and similar institutions’. Private individuals are not therefore barred from importing and acquiring cultural property illicitly exported from the State of origin. Third, the insertion of the phrase ‘consistent with national legislation’, limits the duty to take necessary measures to prevent such acquisition to those that already exist in the State’s national legislation. As such, rather than requiring the implementation of new national measures to address this issue, each State is simply required to use existing measures to address the issue, and the limitations inherent in any particular State’s national legislation will remain a barrier to effective protection.177 The greater control that a State has over such institutions under its existing national legislation, irrespective of whether these institutions are public or private, the more effective will be the possible implementation of article 7(a). Where, however, a State has very limited control over such institutions, particularly private ones, its ability to give any meaningful effect to article 7(a) will be severely limited. Finally, and following on from the latter point, States are merely required to take the necessary measures to prevent such acquisition. There is no obligation to make such an acquisition illegal and States are left considerable discretion as to how to prevent such acquisition. That article 7(a) is particularly weak is further evident in its concluding sentences. Since the import of the illicitly exported cultural property in question will not be illicit, and the prevention of the acquisition of such property is limited only to a number of institutions, and only to the extent that existing national legislation regulates such an acquisition, the importing State will inform the exporting State of an offer for sale of illicitly exported material. Since this cultural property will not be illicit in the importing State, and that the article only prevents a museum,

177 This is particularly so with the US implementation of the Convention, see O’Keefe (2007) op. cit., p. 56.

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for example, from purchasing the cultural property, there is nothing to prevent that material then being offered to a private purchaser. By informing the exporting State of the offer for sale, it at least informs the latter States of the existence of such property. This is particularly important in the case of illicitly excavated material that is probably unknown to the exporting State. However, this duty to inform is limited to the extent that it applies only when the illicit export has occurred after both the importing and exporting States have become parties to the Convention. Given that, in the case of illicitly excavated and exported cultural property, the exporting State will not know when that illicit export occurred, let alone that it occurred in the first place, and that only the importing State may know of its existence, but not of the time of the export, it will only be in very exceptional circumstances that such notice will ever be given. It is not then surprising that this duty arises only ‘whenever possible’. Unlike article 7(a), article 7(b) does specifically address and provide for illicit imports. First, article 7(b) provides that States Parties undertake: (i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to this Convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution. This article is exceptionally narrow in its scope. First, it imposes a duty on importing States to prohibit the import of only a sub-category of illicit cultural property. Only that which has been stolen from a museum or similar institution, or secular or religious public monument, is addressed. Second, the article is further limited by the requirement that such property ‘is documented as appertaining to the inventory of that institution’. As such, it applies only to inventoried cultural property, and cannot be applied to illicitly excavated cultural property since this will naturally not have been inventoried. Finally, it will only apply after the entry into force of the Convention for the exporting and importing States. While cultural property covered in article 7(b) may be a prohibited import, the importing State will only take appropriate steps to recover and return the property if the exporting State complies with a number of onerous obligations. These are addressed in the second part of article 7(b), which provides that States Parties undertake: (ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property. Requests for recovery and return shall be made through diplomatic offices. The requesting Party shall furnish, at its expense, the documentation and other evidence necessary to establish its claim for recovery and return. The Parties shall impose no

The return, restitution and repatriation of movable cultural heritage 181 customs duties or other charges upon cultural property returned pursuant to this Article. All expenses incident to the return and delivery of the cultural property shall be borne by the requesting Party. While the duties of exporting States are more clearly identified in article 7(b), those of importing States are less so, given that they are simply required to take ‘appropriate steps’ for the return. As O’Keefe notes, this may simply amount to ‘advising the requesting State to take legal proceedings’.178 It may, however, include granting customs the power to seize certain imported cultural property. Like the preceding provisions of article 7, this provision is replete with limitations that undermine the effective prevention of the illicit trade in cultural property. First, the importing State will only take any steps after the other State has requested that it act, and may only do so through diplomatic channels. As such, where such diplomatic offices are limited or suspended, it is unlikely that any steps will be taken.179 This is particularly so when the two States may be involved in an armed conflict, and occurred in the Second Gulf War when both the US and Iraq were party to the Convention, but did not, for obvious reasons, maintain diplomatic relations. Second, the burden of initiating the process of return rests with the requesting State, and presumes it has the administrative, financial and technical abilities to do so, as well as to furnish the documentation and other evidence necessary to establish its claim. The requesting State is also required to meet all expenses incident to the return and delivery of the cultural property. This is certainly a considerable burden for poor developing States. Third, and perhaps the most onerous requirement, is that the requesting State must pay ‘just compensation to an innocent purchaser or to a person who has valid title to that property’. This aspect is particularly problematic as it addresses directly private property law issues. Essentially article 7(b) address illicit imports, but rather than linking this to illicit export, it is linked to the loss of possession due to theft, thus implicating private property right. The consequence is that the request for the return of the property is grounded in issues relating to theft rather than only the illicit export of stolen cultural property, which in almost all cases will also have been contravened when a stolen cultural object is moved from one State to another. Since the issue of stolen property can usually be made an issue in the court of another State without recourse to the Convention, this request for recovery and return supplements this in relation to the illicit export.180 For this reason, it had been argued that article 7(b) acts as a supplement to any existing laws in the importing State which may allow for the restitution of cultural property to the State of origin.181 This is

178 O’Keefe (2007) op. cit., p. 60. 179 Ibid., p. 60. 180 Nevertheless, article 13(c) further provides that States Parties do ‘admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners’. Discussed further below. 181 J.B. Gordon, ‘The UNESCO Convention on the Illicit Movement of Art Treasures’ (1971) 12 Harvard International Law Journal 537, 550–1.

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particularly likely in common law States, but less likely in civil law jurisdictions. It is with regard to the latter that the restitution becomes embroiled in matters of compensation to an innocent purchaser. The question of compensation paid to an innocent (bona fide) purchaser is a complex issue especially given the different approaches taken amongst States, particularly between those with a common law tradition and those based upon civil law. Since this article requires the importing State to take ‘appropriate steps’ to recover and return such stolen property, the payment of compensation is not compulsory, but dependent on what is appropriate in the importing State. As such, some States do not provide for the payment of compensation in their implementing legislation.182 For States that do require the payment of compensation, it is that State that will determine how the compensation amount is calculated; whether, for example, it is the purchase price or the market price at the time of restitution which is to be paid.183 Similarly, it is that State that will give content to what is an innocent or bona fide purchaser. Civil law jurisdictions, particularly those with an active art and antiquities market might interpret this rather widely, while poor States of origin might interpret this narrowly. Since 1970, however, the extent of the purchaser’s duty to diligently investigate the origin and provenance of the particular object has gradually increased, and effectively limited the circumstances in which compensation might be paid.184 The final effect of article 7, to a number of States, is to limit the interpretation of article 3 of the Convention so as to conform only to the duties set out in the former article. That is, an importing State is only bound to make illicit the importation of cultural property addressed in article 7, being objects stolen from a museum or a religious or secular public monument or similar institution. Whilst this will usually also be an illicit export, the only illicit exports that are specifically addressed are those that are offered for sale to a museum and similar institutions in the importing State. That is not to say that the importation of that material will be illicit, only that those institutions will not be able to purchase that material. The introduction of article 7 in the Convention was a direct result of US involvement late in the negotiation process and, as is evident, had the effect of dramatically limiting the range and effectiveness of the conventional regime. So much so that the only State to vote against the adoption of the Convention in 1970 (Upper Volta – now Burkina Faso) did so on the basis that article 7 deprived the text of all its value.185 Its effect on article 3 has been described as leaving it ‘emasculated’ and of ‘only minimal significance’.186

182 The US, for example, does not provide for the payment of compensation, nor does Australia. O’Keefe (2007) op. cit., p. 63. 183 See O’Keefe (2007) op. cit., pp. 63–5 for a more detailed discussion on the amount of compensation that might be paid. 184 Ibid., pp. 65–6. 185 Ibid., p. 1. 186 Abramson and Huttler, op. cit., p. 960.

The return, restitution and repatriation of movable cultural heritage 183 The timing of the illicit export and import Article 3 requires that a State make the import of cultural property affected contrary to the provisions of the Convention illicit. That is, according to a wide interpretation of article 3, States are required to make the import of cultural property that was illicitly exported from another State, illicit. Since the Convention does not apply retrospectively, the import must take place after the Convention has come into force for the importing State. However, it does not necessarily mean that the illicit export from another State need also to have occurred after the importing State became a party to the Convention. Indeed, it is not necessary for the exporting State to be a party to the Convention for the importing State Party to make the importation of such property illicit.187 The prohibition against import from the time the importing State becomes a party to the Convention affects the prospective behaviour of importers, and is not therefore retrospective. As O’Keefe notes, it ‘gives the public fair warning that they should investigate the legality of the original export because this will affect the legality of the import’.188 This, however, is a matter for each State. Since the Convention is silent on this issue (other than in relation to article 7), it is a matter for each State to determine when the illicit export is to have occurred for the purposes of determining the legality of the import.189 As such, those States that take a narrow interpretation of article 3, restricting it to a substantive implementation of article 7, will require that the theft of certain property or the illicit export of certain property, and the illicit import or restriction of purchase on a museum or similar institution have occurred ‘after the entry into force of this Convention for the States concerned’. Thus, at a minimum, each component must have taken place after the entry into force of the Convention for that particular State. With regard to the duties set out in article 7(b)(ii), however, these only apply ‘after the entry into force of this Convention in both States concerned’. That is, both States must have, at the relevant times, been party to the Convention. These provide minimum standards, and States are still free, however, to allow for a more robust protective regime. Transfer of ownership of cultural property The Convention essentially attempts to introduce an import and export regime to address the problem of the illicit trade in cultural property. The Convention’s title, however, is not so limited and includes reference to the illicit transfer of

187 Australia, for example, will return cultural heritage illicitly exported from another State irrespective of whether that State is also a party to the 1970 Convention – Protection of Movable Cultural Heritage Act 1986 (Cth). 188 O’Keefe (2007) op. cit., p. 10. 189 See for example the Canadian case of R v. Heller, Zango and Kassam (1983) 27 Alta LR (2d) 346, and particularly the criticism of the decision by O’Keefe (2007) op. cit., p. 10.

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ownership of cultural property. However, the only article which actually addresses directly the transfer of ownership of cultural property is article 13.190 It provides that States Parties undertake, consistent with the laws of each State, to prevent by all appropriate means transfers of ownership of cultural property likely to promote the illicit import or export of such property.191 No indication is given as to what forms of transfer of ownership are likely to promote the illicit trade. Perhaps the most obvious is simply private ownership, so that no transfer of ownership from a State entity to a private individual of cultural property, or certain classes of cultural property, is permitted on the basis that such ownership will encourage private citizens to illicitly export that property in order to benefit from sale on the markets of other States. While some States may introduce such a regime, others may not.192 The extent of this restriction therefore depends on the legal systems of each particular State, and does not require that State to make any amendment to its existing system since this article is conditioned on it being ‘consistent with the laws of each State’. It is therefore for each State to determine, according to its existing legal structures, which forms of transfer of ownership are likely to promote the illicit trade in cultural property and to give effect to this legal regime by all appropriate means. The Convention does not therefore deal directly with the question of ownership. While article 7(b) does address the issues of stolen cultural property, it does not define what stolen is, and leaves this for determination by each State. Given the narrow remit of article 7(b), with its requirement that the cultural property in question has been inventoried by the museum or similar institution from which it was stolen, it is likely that most States would recognise the original claim of ownership. Nevertheless, article 13(c) does provide that States Parties ‘admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners’.193 In this limited sense, most States would already admit actions from such a museum or similar institution. Article 13(c), however is not limited in its application to article 7(b) alone, and may apply to a wider range of claims for the recovery of lost or stolen cultural property. Like article 13(a), however, it is also limited in that such an admission is to be consistent with the laws of each State. As such, whether blanket claims of State ownership will be recognised for the purposes of determining whether a cultural property object is stolen will depend entirely on the laws applied by the court in which the matter is addressed.194

190 Article 11 also addresses the transfer of ownership under compulsion of cultural heritage in occupied territories. See below. 191 Article 13(a). 192 Egypt and Jordan, for example, prohibit all trade in antiquities. O’Keefe (2007) op. cit., p. 83. 193 Article 13(c). 194 See for example the application of the US National Stolen Property Act in United States v. Schultz, 333 F.3d 393 (2nd Cir, 2003).

The return, restitution and repatriation of movable cultural heritage 185 National services and duties that address the illicit trade in cultural property A number of articles require States Parties to adopt certain national services and measures designed to address the illicit trade. While most would appear to apply to both importing and exporting States, the greater burden lies with the latter; an unfortunate outcome which undermines the effective eradication of this onerous trade. Article 5 of the Convention requires States Parties to set up national services to address the illicit import, export and transfer of ownership of cultural property. It sets out a number of functions which such a national service ought to fulfil, as well as some characteristics of the service itself, such as ensuring that it has ‘qualified staff sufficient in number’ for the effective carrying out of the suggested functions. The latter include drafting laws and regulations designed to secure the protection of the cultural property; establishing and keeping up to date a list of important public and private cultural property; promoting the development or the establishment of scientific and technical institutions, such as museums, required to ensure the preservation and presentation of cultural property; organising the supervision of archaeological excavations, ensuring the preservation in situ of certain cultural property, and protecting certain areas reserved for future archaeological research; establishing, for the benefit of those concerned (curators, collectors, antique dealers, etc.) rules in conformity with the ethical principles set forth in this Convention; and taking steps to ensure the observance of those rules; taking educational measures to stimulate and develop respect for the cultural property of all States, and spreading knowledge of the provisions of this Convention; and seeing that appropriate publicity is given to the disappearance of any items of cultural property. While the establishment of a national service with such functions would undeniably assist States in addressing the illicit trade in cultural property, many States will simply not have the financial and administrative capacity to do so. As such, article 5 simply requires implementation ‘as appropriate for each country’. This naturally makes it difficult to determine exactly what duties a State Party is required to fulfil. Whilst it has been argued that this qualification merely makes the fulfilment of article 5 a moral obligation,195 it has also been argued that it requires, at a minimum, that a State establishes a national service, though the extent of its functions are merely left to that State to implement.196 The uncertainty as to the content of any duty in article 5 makes it very difficult to enforce, and it is likely that many States have not given effect to many of these provisions.197 Nevertheless, it does provide a framework towards which each State party ought to work.

195 Abrahamson and Huttler, op. cit., p. 962. 196 Fraoua as discussed by O’Keefe (2007) op. cit., p. 53. 197 See A. Browne, ‘UNESCO and UNIDROIT: The Role of Conventions in Eliminating the Illicit Art Market’ (2002) 7 Art Antiquity and Law 379, 381–2.

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Article 14 builds upon this framework by requiring that States Parties should, as far as it is able, provide the national services responsible for the protection of its cultural property with an adequate budget in order to prevent illicit export and to meet the obligations arising from the implementation of this Convention. Given the qualification that the duty is subject to the resources of the State, it is again difficult to identify exactly what a State is supposed to do in this regard. Article 14 also provides that States Parties should, in addition to providing the national service with an adequate budget, set up a fund, if necessary, for the purpose of preventing the illicit export of cultural property. It is not very clear at all exactly what this fund is supposed to be used for. It appears to follow the suggestion contained in the 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, that a fund be established to purchase exceptionally important cultural property as a mechanism of preventing its export. This would apply in those States that provide for an exporting licensing system that only prevents export of certain classes of cultural property if a purchaser in that State can be found. If not, export will be allowed. The fund would allow the State to purchase such property, keeping it in the State. An earlier draft of the Convention did provide for a wider use of the fund, including its use to reward finders of cultural property or to fund publicity campaigns.198 To this extent, it simply overlaps with the broader role of the national service, and the requirement that it be given, as far as is possible, an adequate budget. A further possible role for national services is provided for in article 10, which requires that States Parties undertake to ‘restrict by education, information and vigilance’, movement of cultural property illegally removed from any State Party to this Convention and to ‘endeavour by educational means to create and develop in the public mind a realisation of the value of cultural property and the threat to the cultural property created by theft, clandestine excavations and illicit exports’. Whilst the latter obligation is qualified by the term ‘endeavour’ the former has no such qualification. Whilst it has therefore been described as an absolute obligation,199 it is difficult to determine whether a particular State has actually restricted the illicit trade through the provisions of education, information and vigilance. As such, it has also been described as an ‘unenforceable undertaking’.200 Nevertheless, it will impose a duty on States Parties to implement such measures even if it cannot fulfil a duty to actually restrict the trade. The extent of the measures taken by the State will clearly differ according to whether the State is a developed importing State as opposed to a developing exporting State, and the measures taken should be consistent with its abilities under these limitations. Rather awkwardly, article 10 addresses an issue not directly related in the provision of information and education. It obliges States, as is appropriate for each

198 O’Keefe (2007) op. cit., p. 87. 199 Ibid., p. 74. 200 Bator, op. cit., p. 378.

The return, restitution and repatriation of movable cultural heritage 187 State, to require ‘antique dealers, subject to penal or administrative sanctions, to maintain a register recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject’. The aim of this article is to make it easier to trace illicit traffic, and also to benefit purchasers by assuring them of the provenance of the cultural property. It attempts to provide some record of the trade in art, antiquities and all cultural property. This trade includes a number of potential parties, such as auctioneers, and the restriction of this requirement to antique dealers alone is rather limiting. O’Keefe does suggest that this could be more broadly interpreted to include other parties,201 though this is not clear from the ordinary meaning of the text. It is unfortunate that the obligations in this regard are limited to those that are ‘appropriate for each country’. Certainly such a limitation does benefit poorer exporting States that might simply not have the resources to implement and enforce such measures. Importing States, however, should certainly be able to implement these obligations. It is unfortunate that many market States have been reluctant to fully implement this article. The US, for example, on acceptance of the Convention, entered an understanding that it interpreted ‘as appropriate for each country’ as permitting each State to determine the extent of its regulation. This interpretation has allowed the US to implement minimal controls on its antiquities market, relying more on industry self regulation. Finally, article 13 imposes a number of obligations on States Parties which might be undertaken by national services. Article 13(b), in particular, requires the competent services to ‘co-operate in facilitating the earliest possible restitution of illicitly exported cultural property to its rightful owner’. Described as a ‘somewhat ambiguous provision’202 it appears to require little more than that a State Party give effect to its existing laws in as effective a way as possible, including co-operation with exporting States. Exactly what this might entail depends on the existing laws of each particular State, as does indentifying who exactly is the ‘rightful owner’ of the illicitly exported cultural property. Since this article deals with illicit export, it is not clear, for example, why return is made by reference to ownership, rather than simply to the exporting State, where the latter can address the issue of who the rightful owner is. Again, it is unfortunate that the unnecessary mixing up of the issues of illicit export and ownership has affected the interpretation of the Convention’s provisions. Sanctions Underlying the attempt in the Convention to make the export of cultural property without an export certificate illicit, as well as making the import of such material

201 O’Keefe (2007) op. cit., p. 75. 202 Ibid., p. 83.

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illicit, article 8 provides that States Parties undertake to impose penalties or administrative sanctions on any persons that engage in such illicit export or import. However, since this export and reciprocal import regime was compromised by the insertion of article 7 in the Convention, this regime of sanctions is limited so as to correspond with the narrow interpretation of the scope of the Convention resulting from these additions. As such, sanctions are to be imposed only for infringing article 6(b) and 7(b). That is, for exporting cultural property without an export permit and, importantly, for importing documented cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party. That sanctions are required undermines the importance of these articles in the protective regime, however narrowly interpreted. It does not, however, specify what kind of sanctions should apply. Usual sanctions would include fines, imprisonment and forfeiture of cultural property.203 Penal or administrative sanctions are also provided for in article 10(a), in relation to the requirement that antique dealers maintain ‘a register recording the origin of each item of cultural property, names and addresses of the suppliers, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject’. Since, however, this is qualified by the extent to which such a measure is appropriate for each State, it does not allow for any uniform or exacting content. Occupied and controlled territories The illicit trade in cultural property flourishes during armed conflicts, as those in Cambodia, Cyprus, Kuwait, Iraq and Afghanistan have attested to. This is particularly so when territory of one belligerent is occupied by that of another belligerent. The 1954 Hague Convention addressed the duties of occupying States during armed conflicts.204 The difficulty with addressing transfer of ownership of cultural property, and the export and import limitation of property from occupied territories required the adoption of a protocol to the Convention rather than being addressed in the Convention itself. This difficulty of dealing with private properties rights is again reflected in the 1970 Convention’s attempt to address cultural property in occupied territories. Article 11 provides that the ‘export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit’. The prohibition of the export of cultural property from occupied territories reflects the prohibition contained in article 1 of the First Protocol. However, it is not clear whether the import of illicitly exported cultural property from the occupied territory is to be illicit. O’Keefe maintains that since import is not mentioned,

203 Provision for fines, imprisonment and forfeiture is provided for by Canada (Cultural Property Export and Import Act), Australia (Protection of Movable Cultural Heritage Act 1986 (Cth)). 204 Article 5, 1954 Hague Convention. See Chapter 3.

The return, restitution and repatriation of movable cultural heritage 189 ‘no direct implementation of any provisions on this is required’.205 This will naturally depend on the interpretation taken of article 3, such that States which take a wide interpretation of article 3 will consider such illicitly exported cultural property to be a prohibited import. On the other hand, if illicit imports are only those addressed in article 7, then article 11 might not be so widely interpreted. Article 11 does not deal solely with export, but links it to the transfer of ownership under compulsion, either directly or indirectly. Indirect compulsion might include the necessity of selling cultural property due to the deteriorating economic conditions of the territory under occupation,206 or even perhaps the need to sell the cultural property in order for it to be moved away from a conflict zone. The article requires States Parties to regard such a transfer of ownership as illicit. However, it does not indicate what the consequences of this are. It has been argued by both Fraoua207 and Chamberlain208 that the transfer of ownership will simply not be recognised as valid. This is certainly the interpretation which provides the most effective limitation on the illicit trade in the cultural property from occupied territories, but is not necessarily the interpretation that will be taken by States Parties. The Convention was drafted in the late 1960s, a period of decolonisation and the emergence of newly independent States. At the time, a number of territories were also under various forms of control and administration though UN mandates and other mechanisms. The drafters of the Convention were therefore eager to ensure that the provisions of the Convention extended to those territories which were under such administrative control, and thus provided, in article 12, that States Parties ‘shall respect the cultural property within the territories for the international relations of which they are responsible, and shall take all appropriate measures to prohibit and prevent the illicit import, export and transfer of ownership of cultural property in such territories’. While fewer territories will today fall within the remit of article 12, it does require action by the administrating State, though these are only those ‘appropriate’ in the circumstances. Bilateral agreements Article 15 provides that ‘[n]othing in this Convention shall prevent States Parties thereto from concluding special agreements among themselves or from continuing to implement agreements already concluded regarding the restitution of cultural property removed, whatever the reason, from its territory of origin, before the entry into force of this Convention for the States concerned’. This provision appears to have little value as it does not add anything to the Convention since States already have the power to enter into such agreements, or to continue

205 206 207 208

O’Keefe (2007) op. cit., p. 78. Ibid. Ibid. Chamberlain (2002) op. cit., p. 250.

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existing agreements. These matters are governed by general international law principles, and the addition of article 15 would appear, at first sight, to have been added simply to confirm this position. However, it may owe its existence to the manner in which the scope of the Convention was narrowed through the introduction of article 7, and complements article 9. The latter article was introduced by the US delegation during negotiations as a mechanism for providing another layer of protection to that narrowly provided for in articles 3, 6 and 7 read together. It reads: Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. Pending agreement each State concerned shall take provisional measures to the extent feasible to prevent irremediable injury to the cultural property of the requesting State. As O’Keefe notes, the terms used in this article have a particular American flavour, including ‘cultural patrimony’ (rather than property or heritage), ‘jeopardy’ and perhaps also ‘pillage’.209 These terms are not defined in the Convention, and are susceptible to wide interpretation, especially when read together. Its curious construction, and the use of these terms, requires some consideration. First, this article only applies to archaeological or ethnological material, and is thus not directly referable to cultural property as defined in article 1. Second, it merely allows a State to call upon other States to assist in protecting this property. This ability, like that contained in article 15 in relation to entering into bilateral agreements, already exists in international law, and as such, the article does not add anything particularly new. Third, this call for assistance is to ‘other States Parties who are affected’. This is a difficult construction since it appears to refer to those States affected in a negative sense by the pillage of the material in question. It appears, however, that in fact the other States referred to are those States with a market for such objects,210 and that article 9 is a mechanism for importing and exporting States to determine the export and import regime that might apply. Exactly what participation in a ‘concerted international effort to determine and to carry out the necessary concrete measures’ means is quite uncertain. While it does envisage some form of export and import control, very little else can be fathomed from this part of the article. While a number of States have entered into bilateral agreements to address specific instances of the illicit trade, particularly between neighbouring

209 O’Keefe (2007) op. cit., pp. 69–73. 210 O’Keefe (2007) op. cit., p. 72.

The return, restitution and repatriation of movable cultural heritage 191 States,211 the US has relied heavily on bilateral agreements to address the illicit trade. The US has entered into such agreements with a number of States, including Bolivia, Cambodia, Cyprus, El Salvador, Guatemala, Italy, Mali, Nicaragua, Peru and China, which provides for import restrictions of specific classes of cultural objects from each State. In some cases the agreements cover a wide range of cultural objects, such as that concluded with Canada and Peru, while others are relatively narrow. Each agreement is therefore concluded on an individual basis and dependent on the circumstances that exist between the two States, including a wide range of foreign policy issues that might affect the nature of the agreement. This includes, for example, reciprocal co-operation from the other State in other matters of import and export, such as illicit drug trafficking.212 As such, it is difficult to argue that these agreements necessarily implement the regimes anticipated in the 1970 Convention, and provide little consistency for the interpretation of the Convention, or for the development of any customary international law, in this regard.213 Participation in the Convention The resulting Convention imposes the primary duty to prevent the illicit traffic in cultural property on the developing exporting States rather than developed importing States such as the US, UK, Switzerland and Japan. Nevertheless, exporting States’ interpretation of the Convention generally envisaged importing States imposing import limitations that would coincide with their export limitations, and many became a party to the Convention shortly after its adoption.214 Few developed States, however, became a party, except for Canada and, some 13 years later, the US. Whilst Canada took a broad interpretation of the Convention, particularly article 3, the US took a particularly narrow interpretation of article 3, as well as a number of other provisions, and its instrument of ratification was accompanied by a number of ‘understandings’ and a reservation that did not mirror the regime anticipated by the exporting States. The extent of these understandings was such that Mexico did not consider them to be compliant with the Conventional regime and did not accept to be bound by these in relation to the US ratification. As such, while both the US and Mexico are parties to the Convention, they are not bound by the Convention in their mutual relations.

211 Thailand and Cambodia, for example, entered into a bilateral agreement in 2000 to address the trafficking of material from Cambodia through the art and antiquities market in Thailand. O’Keefe (2007) op. cit., p. 89. Similarly, China entered into bi-lateral agreements with Peru, Philippines, India and Italy. The parties have agreed to share information relating to illicit trafficking and to co-operate with any restitution. E. Kaufman, ‘China puts pressure on US for import ban on cultural goods’, The Art Newspaper, April 2008, p. 7. 212 Fitzpatrick, op. cit., p. 53. 213 For a criticism of the scope of some of the US agreements see Fitzpatrick, op. cit., pp. 47–77. 214 Including, within five years of its adoption, Ecuador, Nigeria, Cambodia, Cameroon, Mexico, Iraq, Jordan and Iran.

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The weak form of US implementation has, to some extent, been alleviated by the US’s reliance on articles 9 and 15 to enter into bilateral agreements with States that do introduce reciprocal export and import regimes. However, as O’Keefe notes, this interpretation ‘reduces the 1970 Convention to “an agreement to agree”, an interpretation which might be surprising to delegates … who might have considered that their task in Paris in 1970 was in fact to make the agreement, not to agree to make others’.215 To some extent, the US has relied on pre-existing laws, such as the National Stolen Property Act, and its customs regulations to provide at least some form of control over the import of cultural property, but these are not directed specifically to the protection of cultural property, and successful prosecutions and seizures have been incidental.216 While the number of new States Parties to the Convention grew steadily after the initial decade of its being, few were developed importing States. 217 Importantly, in 1989 Australia finally ratified the Convention, having, in 1986, adopted implementing legislation in the form of the Protection of Moveable Cultural Property Act (Commonwealth).218 While Australia is neither an important importing State, nor has a debilitating problem with illicit excavation and export, its implementation of the Convention is the ‘most extensive implementation of the 1970 Convention yet undertaken’.219 It has served as an example of implementation that gives content to the spirit of protection that many had hoped the Convention would embody.220 That is not to say it is perfect. It does require exporting States to bear the burden of initiating any process of recovery; an often onerous burden. The late 1990s and early 2000s saw an increasing number of importing States such as Japan, Denmark, Norway, Germany, Belgium, UK and Switzerland becoming State Parties. While it might have been hoped that this evinced a changing attitude towards the Convention and an appreciation of the difficulties posed to source States by the illicit trade in cultural property, many of these States have, unfortunately, adopted as narrow an interpretation of the Convention as that taken by the US. The UK, for example, has long been opposed to interference with its prominent role as one of the world’s leaders in the trade in art and

215 O’Keefe (2007) op. cit., p. 110. 216 United States v. An Antique Platter of Gold 991 F Supp 222 (SDNY, 1997), 184 F 3d 131 (2nd Cir, 1999); United States v. Schultz, 333 F 3d 393 (2nd Cir, 2003). 217 The number of ratification and acceptances over the decades was: 1970s – 42; 1980s – 23; 1990s – 25 and 2000 to 2009 – 27. 218 On the Australian legislation see Forrest (2004) University of New South Wales Law Journal, op. cit., pp. 605; O’Keefe (2007) op. cit., pp. 100–6. 219 O’Keefe, op. cit., p. 100. 220 At the time of acceptance Australia entered a reservation to article 10 of the Convention, declaring that was ‘not at present in a position to oblige antique dealers, subject to penal or administrative sanctions, to maintain a register recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject’. (LA/Depositary/1989/20 of 10 January 1990).

The return, restitution and repatriation of movable cultural heritage 193 antiquities.221 It is noteworthy that the UK paid little attention to the actual drafting of the Convention, and did not even participate in the Meeting of Experts to discuss the Secretariat draft of the Convention in 1970. Its disregard of the Convention continued until the mid-1990s when the role of the UK in the illicit trade increasingly came under scrutiny.222 Following a report by the UK Government’s Ministerial Advisory Panel on Illicit Trade in December 2000, which revealed approximately 30 seizures of cultural goods by Customs and Excise in 1999 alone, and London Interpol Unit investigated 132 cases of illicit traffic, the UK acceded to the Convention in November 2002.223 Importantly, no implementing legislation was considered necessary to give effect to the Convention; the existing legal framework being considered sufficient to do so. While the Dealing in Cultural Objects (Offences) Act 2003 was introduced to make it illegal to dishonestly and knowingly deal in certain ‘tainted’ objects, the Act is unlikely to have a great effect on the trade given the difficulties in proving any contravention.224 This approach to implementation would indicate a rather narrow interpretation of the Convention, allowing the UK to continue to act as a centre for the international trade in cultural property. Japan, a major importing State, also ratified the Convention in December 2002.225 Within the Asian region, this will be of particular importance given Japan’s history of failing to investigate or have regard for the provenance of Chinese, Cambodian and other Asian cultural property entering the country. Unfortunately, the Japanese implementing legislation226 takes as narrow a view as that of the US, leading O’Keefe to comment that it ‘totally ignores the reality of the unlawful trade in cultural property’.227 Sweden has also recently become a party to the Convention, but it too has taken an exceptionally narrow interpretation of its provisions, requiring no change to existing Swedish law. As such, it is still legal to import into Sweden cultural property illicitly exported from other States.228 Switzerland has long been one of the most important art market and transit States, and has had minimal legislation which distinguishes cultural property from any other sort of good. As such, cultural property has been freely traded in Switzerland, particularly in its fee ports, and Swiss law has not regarded illegal the import of cultural property illegally exported from a source State. After a long

221 See Ministerial Advisory Panel, Department for Culture, Media and Sport, Ministerial Advisory Panel on Illicit Trade: Report (2000). 222 Particularly by the publication of P. Watson, Sotheby’s Inside Story, London: Bloomsbury, 1997. 223 Chamberlain (2002), p. 231. 224 M. Bailey, ‘UK Law to Ban Trade in Illicit Antiquities’, The Art Newspaper, July 2003, p. 8. 225 T. Kono and E. Kani, ‘Japan’s Measures for the Implementation of the 1970 UNESCO Convention’ (2003) 8 Art Antiquity and Law 107; F. Wilson, ‘Japan Moves Towards Ratifying Unesco Convention’, The Art Newspaper, May 2002, p. 14 226 Law Concerning Controls on the Illicit Export and Import of Cultural Property 2002. 227 O’Keefe (2007) op. cit., p. 126. 228 S. Lundén as quoted in O’Keefe (2007) op. cit., p. 99.

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period of consultation and negotiation, Switzerland became a party to the Convention in January 2004.229 Unfortunately, Switzerland’s implementing legislation takes its lead from the US implementing legislation, and adopts a narrow interpretation of the Convention.230 It is envisaged that the broader protective mechanism outlined in the Convention, particularly the limitation on imports of cultural property illicitly exported from other States Parties, will be implemented through bilateral agreements, initiated by other States, particularly those in Africa, Asia and South America. Much of the burden of entering into such bilateral agreements rest with the exporting State seeking co-operation; as does the burden of attempting to have any illicit cultural property restored to it. Where the Swiss implementing legislation does make some progress in the fight against the illicit trade is in relation to the regulation of cultural property institutions, art dealers and auctioneers by effectively requiring attention to be paid to the provenance of any objects on the market, and the recording of relevant details. While it does not necessarily put a stop to all transactions which might be tainted with elements of the illicit trade, the latter requirement provides at least information that might be used in further investigations and to hamper the further trade in those objects internationally. The ratifications of the Convention by Japan, Switzerland and the UK, appears to have been taken in a context that has attempted to implement the Convention in a manner which accommodates their existing regimes, with as little alteration as possible, and certainly with as little disruption to its art and antiquities market as possible. Whether Japan’s ratification and implementation actually gives effect to the Convention might even be questioned, and perhaps ought to have been rejected by other States Parties.231 Importantly, since none of the implementations of the Convention in recent years applies retrospectively, it remains to be seen how they will work in practice and what affect they will have on the international illicit trade in cultural property. With 117 States Parties to the Convention, a number of exporting and importing States have yet to participate in this regime. It is unfortunate, for example, that Singapore, a major transit and market state for Asian cultural property, is not a party to the Convention. Nor is the Netherlands, Austria and Ireland, all developed States which, though not major market States, will have some art and antiquity dealers and buyers involved in the international art and antiquities market. On the other hand, a number of developing source States have yet to become a party to the convention; most notable perhaps is Thailand, though this might also include Kenya, Ghana and Indonesia.

229 R. Plutschow, ‘Will Switzerland finally ratify the UNESCO 1970 Convention?’ (2002) 7 Art, Antiquity and Law 163; M. Bailey, ‘Swiss pass law to restrict the illicit trade’, The Art Newspaper, September 2003, p. 7. 230 On this legislation, see G. von Segesser and A. Jolles, ‘Switzerland’s New Federal Act on the International Transfer of Cultural Property: An Update and a Perspective from the Art Trade’ (2005) 10 Art Antiquity and Law 175; and O’Keefe (2007) op. cit., pp. 129–37. 231 O’Keefe (2007) op. cit., p. 128.

The return, restitution and repatriation of movable cultural heritage 195 An evaluation of the Convention While the Convention is important in laying the foundation for an international framework for the protection of cultural property, it is clear that its provisions are susceptible to a myriad of interpretations. Evaluating its success is as difficult to determine as obtaining consensus on the interpretation of some of its terms. Some would argue that the Convention has failed to establish a satisfactory regime to deal with the problem of the illicit trade in cultural property.232 Despite its adoption in 1970, the hope of a less threatening environment for the world’s cultural property has increasingly been eroded as illicit trade has increased over the past three decades.233 The trade is now estimated to be between $150 million and $2 billion a year, second only to the illicit trade in drugs and weapons.234 Central to this is the imbalance between the duties imposed on developing exporting States and those undertaken by developed importing States. In discussing the development of the Convention, Abrahamson and Huttler commented that ‘for any international action in this field to gain sufficient participation to assure at least some efficacy, it must incorporate a spirit of compromise and adopt a multivalued system’.235 In hindsight, the compromise reached has done little to establish an effective protection regime. The imbalance in the assigned duties has long favoured developed importing States by imposing on developing exporting States the more onerous duties of addressing the illicit trade. These States have not been able to fulfil these duties, and the illicit trade in cultural property has flourished. As Merryman indicates when considering a reconstruction of the international regime that applies to cultural property, ‘[t]he strongest force for reconstruction resides in the power of the major importing nations, de facto and under international law, to decide whether and under what circumstances to recognise and enforce foreign export controls’.236 To address this problem, developed importing States need to take greater responsibility in providing demand side regulatory and preventative measures. Given the manner in which the Convention has been implemented by Japan, Switzerland and the UK, this, however, is unlikely. In this light, others have argued that the Convention is, nevertheless, an important part of the fight against the illicit trade and ought not too easily be written off

232 J.H. Merryman, ‘A Licit International Trade in Cultural Objects’ (1995) 4(1) International Journal of Cultural Property 13, 27; Jote, op. cit., p. 201; B. Bengs ‘Dead on Arrival? A Comparison of the Unidroit Convention on Stolen or Illegally Exported Cultural Objects and U.S. Property Law’ (1996) Transnational Law and Contemporary Problems 503, 509. 233 N. Brodie, J. Doole and C. Renfrew (eds), Trade in Illicit Antiquities: the Destruction of the World’s Archaeological Heritage, Cambridge: McDonald Institute for Archaeological Research, 2001, p. xi. See also N. Brodie and K. Walker Tubb, Illicit Antiquities: The Theft of Culture and the Extinction of Archaeology, London: Routledge, 2002, p. 11. 234 N. Brodie, J. Doole and P. Watson, Stealing History: The Illicit Trade in Cultural Material, Cambridge: The McDonald Institute for Archaeological Research (2000), p. 23. 235 Abramson and Huttler, op. cit., p. 949. 236 Merryman (1995) op. cit., p. 42.

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as a failure. Considering the difficulty in reconciling often divergent and intractable views of the problem of illicit trade, and the resulting difficulty in interpreting the Convention, O’Keefe argues that ‘there is much to be gained in having a convention which allows for innovation; for broad and narrow interpretations depending on the politics of the State concerned’.237 It has also been argued that the success of the Convention lies not necessarily in the creation of binding international obligations on States Parties, but in its broader influence and educational role. Prott notes that the ‘International Council of Museums (ICOM) has adopted a Code of Ethics in conformity with its provisions, a good deal of legislation has been inspired by it, and the media have become increasingly sophisticated in their handling of the issues’.238 Whatever the strengths and weaknesses of the Convention are, it is hard to disagree with O’Keefe’s conclusion that is ‘has shaped the discussion of all international study of the problem of illicit traffic since its inception’239 and as such has, and will continue, to play a central role in continuing developments. Nevertheless, it is also evident that it is now an outdated instrument and while perhaps premature, consideration ought to be given some time in the future to a rejuvenated attempt at addressing the issue anew.

The 1995 UNIDROIT Convention The 1970 Convention addresses the problem of the illicit trade in cultural property from a public law perspective. Following a report to UNESCO on national legal controls on illicit traffic, UNESCO requested that the International Institute for the Unification of Private Law (UNIDROIT)240 consider the private law aspects of this trade which might be standardised by way of a convention or model law.241 In particular, this would deal with issues of ownership, limitation periods, the position of the bona fide purchaser and the payment of compensation in some cases. While article 7(b)(ii) of the 1970 Convention touched on private law issues, providing for compensation to an innocent purchaser or to a person who has valid title to that property, UNESCO, strictly speaking, had no mandate to address these issues, while UNIDROIT did. Furthermore, concern had been raised by the variety of interpretations taken of the 1970 Convention, and clarification was considered necessary in respect of the need to impose import restrictions on illicitly exported cultural property.242

237 O’Keefe (2007) op. cit., p. 147. 238 L.V. Prott, ‘UNESCO Celebrates Thirtieth Anniversary of Its Convention on Illicit Traffic’ (2000) 9 International Journal of Cultural Property 247, 248. 239 O’Keefe (2007) op. cit., p. 166. 240 UNIDROIT is an independent intergovernmental organisation established in 1926, which has its Secretariat based in Rome. 241 Prott (1997) op. cit., p. 12. 242 P. Jenkins, ‘The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects’ (1996) 2 Art Antiquity and Law 163, 164.

The return, restitution and repatriation of movable cultural heritage 197 Since many of the private law issues differed substantially between different legal systems, particularly the common law and civil law systems, consensus was difficult to achieve, the more so in negotiations which addressed such an emotive issue as cultural property and included a broad division between exporting and importing States. At the end of a difficult and protracted process, however, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was adopted on 24 June 1995243 and entered into force on 1 July 1998. Importantly, and by design, the UNIDROIT Convention complements the 1970 Convention.244 While the latter is essentially a public law instrument, requiring State action by way of the implementation of legislation or adoption of appropriate administrative procedures by States Parties, the UNIDROIT Convention deals with both stolen and illegally exported cultural property, establishing a system for the return of objects to the true owner in the case of stolen objects, or to the State of export when the cultural property has been illegally exported.245 As it provides a mechanism for direct access to the court of a State Party by private individuals (or States) it is essentially a private law instrument. That is, once a State becomes a party to the Convention and implements its provisions nationally, private individuals will be directly affected through the ability to take action and have action taken against them. This naturally has a direct impact on the way in which different legal systems deal with such issues. As such, the Convention reflects ‘a minimum set of uniform rules’246 which reflects a delicate compromise between the different legal systems, particularly between the civil and common law jurisdictions, and between the interests of exporting and importing States. That the Convention is a set of minimum uniform rules is an important qualification, set out in article 9, which provides that ‘[n]othing in this Convention shall prevent a Contracting State from applying any rules more favourable to the restitution or the return of stolen or illegally exported cultural objects than provided for by this Convention’.247 While the drafting of this article was the subject of much debate, with a great variety of alternatives proposed, it essentially leaves the degree of protection to the court in which a claimant or requesting State takes action. That will usually be the State in which the stolen or illicitly exported cultural

243 The Convention was adopted by a vote of thirty-five in favour of the Convention, five opposed and seventeen abstentions. For an overview of the negotiating process, see Prott (1997) op. cit., pp. 12–14. 244 Recognition of the importance of the 1970 Convention is made in the ninth recital of the preamble. 245 It is therefore no argument to suggest that the Convention provides few obligations on Contracting States. See Valentin, op. cit., pp. 108–9. 246 Prott (1997) op. cit., p. 74. 247 Article 9(2) simply restates the accepted legal position that article 9(1) shall not be interpreted as creating an obligation to recognise or enforce a decision of a court or other competent authority of another Contracting State that departs from the provisions of this Convention. See Prott (1997) op. cit., p. 77.

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object is to be found. This State is likely to be one which has an active art and antiquities market, and as such, the Convention attempts to introduce a regime that sets a minimum set of standards that will apply in such States. That, of course, is as long as art and antiquity market States become a party to the Convention. The preamble’s guiding principles The reasons for the adoption of the Convention are clearly set out in the third recital of the preamble; being that States Parties were: deeply concerned by the illicit trade in cultural objects and the irreparable damage frequently caused by it, both to these objects themselves and to the cultural property of national, tribal, indigenous or other communities, and also to the property of all peoples, and in particular by the pillage of archaeological sites and the resulting loss of irreplaceable archaeological, historical and scientific information. Importantly, three beneficiaries of the protection regime are indentified. The first is the object itself. While this refers first to the physical integrity of the corporeal object, this is further extended in relation to objects from archaeological sites in that it will include the archaeological, historical and scientific information that is associated with the excavation and study of that object. The preservation of the physical integrity of an archaeological object, without its associated archaeological information, is incomplete protection. The second beneficiary is the national, tribal, indigenous or other communities whose cultural property is protected. The recognition of the interests of groups within a State, and not simply the State itself as if it were one homogeneous unit, is of particular importance. Since the Convention allows for private individuals to take action in the court of another State, this is both of practical importance as well as a principled recognition of the differences between national and sub-national interests in cultural property. Finally, the protection of the property of any State, or sub-national group, is of importance to ‘the property of all peoples’ as we all make up one humanity. Whilst expressing these concerns, the preamble emphasises that it is the illicit trade which is the object of the Convention, and not the wholesale elimination of the trade in art and antiquities. The latter, while contributing to the illicit trade, does play an important part in ‘cultural exchanges for promoting understanding between peoples, and the dissemination of culture for the well-being of humanity and the progress of civilization’.248 As such, it is recognised that the ‘Convention will not by itself provide a solution to the problems raised by illicit trade, but that it initiates a process that will enhance international cultural cooperation and maintain a proper role for legal trading and inter-State agreements

248 Second recital.

The return, restitution and repatriation of movable cultural heritage 199 for cultural exchanges’.249 Furthermore, concern was raised that while the adoption of the Convention should not interfere with the legitimate trade in cultural property, it should also not act as a mechanism to legitimate existing illicitly traded cultural property in the market. As such, the eighth recital affirms that ‘the adoption of the provisions of this Convention for the future in no way confers any approval or legitimacy upon illegal transactions of whatever kind which may have taken place before the entry into force of the Convention’. While this does nothing more than recognise the principle of non-retroactivity, it plays an important role in emphasising that the 1970 Convention will continue to govern the trade for States Parties up to 1995, with both Conventions then governing after that point. The preamble then sets out how the Convention addresses the illicit trade. ‘Determined to contribute effectively to the fight against illicit trade in cultural objects’ the Convention introduces ‘common, minimal legal rules for the restitution and return of cultural objects between Contracting States, with the objective of improving the preservation and protection of the cultural property in the interest of all’.250 That the Convention introduces minimal rules is further emphasised in the fifth recital which declares that where the Convention provides remedies such as compensation, these need not be adopted if it is not necessary for a particular State ‘to facilitate the restitution and return of cultural objects’. States Parties are therefore free to introduce rules which are more conducive to restitution and return than provided for in the Convention itself.251 Defining cultural objects The Convention was, in part, intended to complement the 1970 Convention, and as such it was thought appropriate that the definition of cultural property adopted under the latter ought to be replicated. Furthermore, many States had implemented the UNESCO Convention into their national legislation using the formulae contained in the 1970 Convention, and its use in the UNIDROIT Convention would thus facilitate its adoption and ease of national implementation. On the other hand, one of the reasons for adopting the UNIDROIT Convention was to address some of the uncertainties and areas of disagreement in the 1970 Convention, which included the scope of the definition of cultural property. Replicating the 1970 Convention therefore caused some problems for States that considered that the 1970 Convention was too wide and imprecise.252 While the UNIDROIT Convention was intended to work with the 1970 Convention, there was also concern that the two Conventions should operate separately so that a State could become a party to the UNIDROIT Convention without necessarily being a party to the 1970 Convention, thus facilitating

249 250 251 252

Seventh recital. Fourth recital. Prott (1997) op. cit., p. 20. Jenkins, op. cit., p. 165 and 168; Valentin, op. cit., p. 113.

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adoption at least of the UNIDROIT Convention. As such, rather than referring simply to the definition as contained in the 1970 Convention, the substantive categories of cultural property contained in the latter were replicated in an annex to the UNIDROIT Convention.253 The Annex simply lists the categories (a) to (k) contained in the 1970 Convention. As such, many of the criticisms levelled at this categorisation arose again, but heightened by some because the cultural property would be broader in scope since it applies to claims by private citizens as well as from a State.254 While the categories of cultural objects are contained in the Annex, article 2 actually addresses the definition. Noticeable in both the definition and in the very title of the Convention is the use of the term ‘object’ rather than ‘property’ or ‘heritage’. By 1995 the use of the term ‘property’ was considered outmoded, and ‘heritage’ was preferred.255 This, however, was opposed by some States, and the only way to achieve consensus was to introduce the more neutral term ‘object’.256 As such, article 2 declares that, for the purposes of the Convention, ‘cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex’. Significantly, the requirement that the cultural objects be ‘specifically designated by each State’ as contained in the 1970 Convention was omitted. This quite simply is because the UNIDROIT Convention is intended to apply to cultural property owned by private individuals and corporations as well as States. While some States might require their citizens or residents to register their cultural property with the State administration, this is not necessarily the case, and the omission allows the inclusion of such property. This has also been the subject of criticism on the basis that the resulting definition becomes exceptionally wide, and as such leaves purchasers of cultural objects exposed to claims for restitution.257 While true, this is a mechanism to address the demand side of the market for cultural objects, a primary aim of the Convention. Scope of the Convention The Convention applies to claims of ‘an international character’ for: a b

253 254 255 256

the restitution of stolen cultural objects; the return of cultural objects removed from the territory of a Contracting State contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural property (hereinafter ‘illegally exported cultural objects’).

Prott (1997) op. cit., p. 25. Valentin, op. cit., p. 108. See Chapter 1. L.V. Prott, ‘The International Movement of Cultural Objects’ (2005) 12 International Journal of Cultural Property 225, 226. 257 Valentin, op. cit., p. 108.

The return, restitution and repatriation of movable cultural heritage 201 Since the 1970 Convention only dealt tangentially with stolen goods, restricted to that stolen from a museum and similar institutions258, the UNIDROIT Convention addresses all stolen cultural objects of an ‘international character’. The latter phrase was included because a number of States wished to ensure that the Convention did not impose on wholly internal matters.259 Nevertheless, it is not entirely clear when a dispute has an international character. Certainly if there is some foreign legal element to any aspect of the ownership or export and import of the cultural property, the Convention ought to be applied. It ought thus to be widely interpreted, though this is not necessarily the case and each State may interpret and apply this provision differently. The Convention is also to apply to illegally exported cultural objects, that being those which were exported contrary to the laws of a State Party that are intended to protect its cultural property. The qualification that the exporting law must be designed to protect that State’s cultural property was introduced so that the Convention would not apply where a simple customs regulation was infringed. Chapter II of the Convention deals with stolen cultural objects while Chapter III deals in detail with the ‘return’ or ‘restitution’260 of cultural property illegally exported. This division of the Convention into articles dealing only with theft, and those dealing only with illegal export, introduced some welcome clarity into what can be a complex legal issue. The restitution of stolen cultural objects While the recognition of private and public property rights and the prohibition against theft is a universal concept, and all parties to the UNIDROIT negotiations recognised this, a number of differences in approach were evident between different legal families, particularly between the common law and civil law legal systems. Three particular matters required resolution and the development of some consensus which would necessarily require compromise given the polar position taken by these legal systems. The first was the difficulty in reconciling the common law principle of memo dat quod non habet, by which a thief, or subsequent possessor from a thief, can never acquire good title (ownership) of the stolen object,261 and the civil law system that recognises that bona fide purchasers of stolen property can acquire good title, which is defendable against claims by the original owner. While apparently irreconcilable, nether principle is rigorously applied in each legal system, with numerous exceptions and variations in each.262

258 259 260 261

Article 7(b)(i), 1970 Convention. Prott (1997) op. cit., p. 22. On the use of restitution rather than return in this context, see above. The principle caveat emptor (buyer beware) is the corollary of the nemo dat quod non habet principle, essentially putting buyers on notice that the risk of the seller not being able to transfer good title lies with the buyer. 262 M. van Gaalen and A. Verhij, ‘The consequences for the Netherlands of the UNIDROIT Convention’ (1998) 3 Art Antiquity and Law 3, 8.

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The second was the issue of statutes of limitations; that is the time period which would either prevent an action by an original owner in the common law system, or by which a bona fide purchaser could obtain good title against the original owner. While the time periods required resolution, the concept of such limitations was a mechanism by which the common law and civil law systems could be brought closer together in order to reach consensus during negotiations. Finally, the concept of a bona fide purchaser required some focus in order for States not accustomed to its use to give some effect to it. This required, in particular, some attention to what is termed ‘due diligence’ in investigating the provenance of an object in the trade. Associated with this issue was the question of when compensation might be paid to a bona fide purchaser. The right of the original owner to restitution The adoption of the common law principle of memo dat quod non habet and the civil law system of favouring the bona fide purchaser essentially serve the same purpose; that is to give an innocent party security of title, thus facilitating trade. Both the original owner and the bona fide purchaser are innocent parties, yet one will inevitably have to lose something when a claim of restitution is made. If the bona fide purchaser gets to keep the cultural object, the original owner loses the object; though insurance may pay for the value of the loss. On the other hand, if the goods are returned to the original owner, the bona fide purchaser loses the object, though compensation might be paid. These polar positions meant that in order to reach some compromise, one approach needed to be taken and its deleterious effects for the legal system not accustomed to the concepts would need to be balanced with compromises over statutes of limitations and compensation. The starting point for the eventual compromise, set out in article 3, is simply that the ‘possessor of a cultural object which has been stolen shall return it’. This is recognition of the common law principle of nemo dat quod non habet. The nature of the cultural property was such that this principle, though not fully developed in civil law systems, was appropriate in all the legal systems. In particular, in the context of cultural objects, no amount of compensation can actually replace what is usually a unique object. Because the object is unique, its importance to an owner is accentuated, and original owners, who may have owned the object for some time, will often have developed considerable emotional attachment to the object. No amount of financial compensation will actually compensate for that loss. Furthermore, the very uniqueness of the object drives the demand in the art and antiquities market, and to side with the bona fide purchaser, even if compensation might have to be paid to the original owner, would effectively introduce a forced and artificial market, further encouraging theft.263 Since the nemo dat quod non habet principle was adopted, the term ‘possessor’ was used to describe the person in whose hands the cultural property is found.

263 Prott (1997) op. cit., p. 29.

The return, restitution and repatriation of movable cultural heritage 203 Article 3, however, does not actually indicate to whom the cultural object is to be returned. This claimant may not necessarily be the owner, but may, for example, be a museum to which the cultural object was loaned, and from which it was stolen.264 Since the Convention introduces a system for private and public entities to claim the restitution of cultural property, it will be up to the national court to determine whether the claimant has a legitimate claim in accordance with the provision of the UNIDROIT Convention as implemented in that national law. Similarly, as to whether the cultural object is stolen will depend on the national law of the State seized with the claim for restitution, including possibly its private international law rules.265 This question of when an object could be considered stolen, raised a problem with regard to objects illicitly and clandestinely excavated. This was particularly the case when a State claimed ownership of all undiscovered and unexcavated cultural property in that State. Such claims were not always recognised by the court of other States.266 After difficult negotiations, article 3(2) was introduced into the Convention to clarify this issue. It provides that: a cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained shall be considered stolen, when consistent with the law of the State where the excavation took place. The status of the objects in question as a stolen object will therefore depend on the legislation of the State in which the excavation took place. This legislation might vest ownership in the landowner or the State. Importantly though, since it will be the court of another State which will be giving effect to this legislation, it will need to be clear in its provisions as to who the owner of such illicitly excavated or retained property is.267 The recognition of the primacy of the principle of nemo dat quod non habet is further reinforced in article 4(5), which provides that a ‘possessor shall not be in a more favourable position than the person from whom it acquired the cultural object by inheritance or otherwise gratuitously’.268 As such, the status of the cultural object cannot be ‘laundered’ simply by its being given gratuitously to another, which often occurs when collections of cultural property are gifted to museums. It must be noted that Chapter II only applies to stolen cultural objects. An earlier draft of the Convention has included ‘conversion, fraud, international misappropriation of lost property or any other culpable act assimilated thereto’.269 This, however, would have caused difficulties since these concepts differed

264 M. Schneider, ‘The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects” Research Paper, UNIDROIT, Rome, 28 November 1995, p. 7. 265 Prott (2007) op. cit., p. 31. 266 See Government of Peru v. Johnson 720 F.Supp. 810 (CD Cal, 1989), discussed above. 267 See for example United States v. Schultz 333 F.3d 393 (2nd Cir, 2003), discussed above. 268 See also article 6(5) in relation to the possessor of illicitly exported cultural objects. 269 Schneider, op. cit., p. 7.

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substantially between different States. The concept of theft, however, did not. Since the Convention introduces only minimum uniform rules, it was applied only to theft, though individual States are free to include such wider acts in the rules applied to action taken by a claimant for the restitution of cultural objects.270 Time limitations With the acceptance of the nemo dat quod non habet principle, came the need to balance the interests of bona fide purchasers, particularly in the civil law States that deferred to the bona fide purchasers’ interests immediately or after a certain time period had elapsed since the original theft had taken place. So, for example, while in Italy no time period applies and a bona fide purchaser obtains good title immediately, under French and Belgium law, an original owner can reclaim cultural objects within a period of three years after the theft from a bona fide purchaser; while in Switzerland such a claim may be made within five years.271 However, while resembling the common law principle of nemo dat quod non habet, in that the original owner can reclaim the object within a certain time period, the civil law system usually requires compensation to be paid in such cases. Furthermore, in many civil law systems, some property is regarded as inalienable, and thus never subject to a claim by a bona fide purchaser. On the other hand, common law systems do impose statutes of limitations so that an original owner cannot make a claim for the restitution of a cultural object if a certain time period had elapsed after the original owner had become aware of the identity of the possessor and done nothing about making a claim for restitution. Achieving some compromise on the time limitations became a key component of the UNIDROIT regime, but was perhaps the most difficult to achieve. Because of this, article 3 includes a complex regime of time limitations. The first time period dealt with in article 3(3) is to require any claim for restitution to be brought ‘within a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor’.272 As such, the claimant must be in a position to make a claim, having identified the possessor and location of the cultural object, before the time period of three years begins to run.273 This is of some importance to developing States as their ability to know of transactions in the art and antiquities market may be quite limited, and simply because some objects are on the market does not necessarily mean that the limitation time period has begun to run. This reflects a shift of the burden from the claimant to the purchaser, which was controversial. Originally article 3(3) had required that the claimant knew or ‘ought to have known’ of the location of the

270 Article 9. 271 Valentin, op. cit., p. 115. 272 This is substantially similar to the discovery rule applied in Autocephalous Greek Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc. 917 F.2d 278 (7th Cir, 1990). 273 Importantly, the European Directive 93/7/EEC imposes only a one year time limitation.

The return, restitution and repatriation of movable cultural heritage 205 cultural object and the identity of its possessor.274 This had been deleted, thus not imposing on the claimant a proactive duty to attempt to locate the object and identify the possessor. Purchasers, however, may only obtain compensation if they neither knew nor ought reasonably to have known that the object was stolen. While this may be onerous for those in the market it reinforces the duties of purchasers to undertake adequate investigation into the provenance of the objects for sale. The imposition of this three-year time period is not dependent on the time of the theft, and as such, it might only begin to run many years after the actual theft occurred. Some States were concerned that exceptionally long time periods would therefore result, and wished to include a ‘long-stop’ provision so as to prevent any claim arising after a certain time. This was provided for in article 3(3) which declares that ‘[a]ny claim for restitution shall be brought … in any case within a period of fifty years from the time of the theft’. In such a case, no claim for restitution can be made. This certainly favours purchasers of cultural objects, and was a compromise in that the imposition of the three year time period and the conditions for that time period beginning to run favours the original owner of the cultural object. The imposition of a long-stop time limitation was not, however, acceptable to a number of States which adopted the principle of inalienability to certain classes of cultural property,275 such as those in State museums and similar institutions. On the other hand, inalienability was foreign to a number of States, who refused to accept a Convention that required them to recognise this concept.276 A compromise effectively imposes the principle of inalienability to certain classes of cultural property, but allows an exception to this in certain circumstances. As such, article 3(4) declares that: a claim for restitution of a cultural object forming an integral part of an identified monument or archaeological site, or belonging to a public collection, shall not be subject to time limitations other than a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor. As such, a claimant can always make a claim for the restitution of the cultural object irrespective of how long ago it was stolen. This applies not only to an identified monument or archaeological site, but to a public collection which is defined in article 3(7) as ‘a group of inventoried or otherwise identified cultural objects owned by a Contracting State, a regional or local authority of a Contracting State; a religious institution in a Contracting State; or an institution that is established

274 Jenkins, op. cit., p. 166. 275 Such as France. 276 This included the Netherlands, Switzerland and UK. Some States, such as Austria, could not implement a regime that had no limitation periods for constitutional reasons. Jenkins, op. cit., p. 166.

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for an essentially cultural, educational or scientific purpose in a Contracting State and is recognised in that State as serving the public interest’. Furthermore, article 3(8) provides that ‘a claim for restitution of a sacred or communally important cultural object belonging to and used by a tribal or indigenous community in a Contracting State as part of that community’s traditional or ritual use, shall be subject to the time limitation applicable to public collections’. The exception then to these claims, effectively of applying the principle of inalienability, is that ‘any Contracting State may declare that a claim is subject to a time limitation of 75 years or such longer period as is provided in its law’. The compromise is merely to extend the 50-year time period to 75 years or more for a claim for restitution of a cultural object displaced from a monument, archaeological site or public collection.277 Since this extended period is essentially an exception to the norm as expressed in article 3(4), a State wishing to impose such an exception is required to make a declaration to that effect at the time of signature, ratification, acceptance, approval or accession.278 Compensation The right of the original owner to restitution of a stolen cultural object is not only subject to the imposition of time limitations, but also to the requirement to pay compensation in certain circumstances. The right to compensation is not automatic. It depends on two important limitations. The first is in fact contained in article 9, which provides that nothing in the Convention ‘shall prevent a Contracting State from applying any rules more favourable to the restitution or the return of stolen or illegally exported cultural objects than provided for by this Convention’. Certainly a mandatory requirement to pay compensation would undermine the ability to restore stolen cultural property to its original owner, particularly if the original owner is a poor developing State that could not afford to compensate a purchaser in a developed State. As such, in those States which do not usually provide compensation (mostly States with a common law system), compensation is not mandatory. The second limitation is contained in article 4(1) and addressed the actions (or inactions) of the possessor. It provides that the possessor of a stolen cultural object required to return it in accordance with article 3, ‘shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object’. These prerequisites to compensation were difficult to resolve given existing national systems of compensation and the differences between legal systems as to concepts of bona fides, good faith and due diligence. While the first two terms were avoided in order to ensure that national interpretation of these terms would not

277 Article 3(5). 278 Article 3(6).

The return, restitution and repatriation of movable cultural heritage 207 intrude on a court’s interpretation of the Convention in any given case, unfortunately the term due diligence was retained. Prott suggests that the term ‘required diligence’ might have been preferable.279 In any event, article 4(4) attempts to give some common meaning to the term ‘due diligence’ by setting out a number of factors which might be considered when determining whether the possessor exercised due diligence. Article 4(4) provides: 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. These are necessarily only indicators and this is not a mandatory or exhaustive list of indicators. It ought to borne in mind that these indicators go to whether compensation ought to be made for the purchase of what the court will already have determined to have been a stolen cultural object. Thus, whether the possessor knew or ought reasonably to have known that the object was stolen will depend on the extent to which the possessor exercised ‘due diligence’ in the purchase. Factors such as the character of the parties involved in the sale to the possessor, the price paid and whether any accessible register was consulted are examples of the steps ‘a reasonable person would have taken in the circumstances’. Quite simply, a court seized with a matter for restitution and the possible payment of compensation will need to consider the extent to which the possessor took the steps a reasonable person in those circumstances would have taken in determining whether the cultural object in question was stolen. This will be entirely dependent on the facts of the particular case. Determining what is reasonable in a situation is essentially something which courts do all the time, and article 4 does nothing more than provide a framework for the court’s deliberations.280 The amount of compensation to be awarded is that which is ‘fair and reasonable’. Nothing more is said of this in the Convention, and is thus to be determined by the court siezed with the matter. It might therefore not necessarily amount to either the purchase price paid by the possessor or the market value at the time of its restitution, but include taking into account a range of other possible factors, such as the cost of the claimant in seeking restitution, particularly legal costs, as well as the cost of maintaining and conserving the object expended by the possessor.281 The payment of fair and reasonable compensation will therefore be used to balance the losses between two essentially innocent parties, the original owner

279 Prott (1997) op. cit., p. 46. 280 For a criticism of the due diligence provision, see Valentin, op. cit., pp. 110–13. 281 Prott (1997) op. cit., pp. 41–4.

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and the possessor who did exercise due diligence in the circumstances of the purchase. There is naturally, however, a non-innocent party who has benefitted from the theft and sale – usually the thief, though others in a trail of possessors might also have benefited. It is also the case that many claimants for restitution will simply not be able to afford the required compensation. These difficulties are recognised to some extent in article 4. Whilst maintaining the right to compensation awarded in accordance with article 4(1), article 4(2) provides that ‘reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the compensation where to do so would be consistent with the law of the State in which the claim is brought’. Exactly how this provision will work in practice will depend on the law of the State in whose court the matter is addressed. While the possessor is thus encouraged to seek compensation from the seller of the cultural object rather than the claimant, if the claimant does pay the compensation, the ability of the claimant to then obtain redress from the seller, for example, is maintained. As such, any payment of compensation by the claimant is ‘without prejudice to the right of the claimant to recover it from any other person’. Illegally exported cultural objects Generally States will not enforce the foreign public laws of another State, which includes foreign export laws. In particular, States such as the US and UK have been strongly opposed to any requirement that they make the import of cultural objects illegally exported from another State illegal. On the other hand, many developing States, whose export restrictions act as a basic protective mechanism for their cultural property, wished to see all illicitly exported material made an illegal import by all other States. Complicating the import and export issue is the fact that many cases of illicit export also involve ownership disputes, including issues relating to theft. This includes theft from the State where the State has declared that certain classes of cultural property, particularly undiscovered and unexcavated objects, vest in the State. Furthermore, State ownership has been claimed as a consequence of forfeiture where the cultural property has been illicitly exported. The attempt to introduce in the 1970 Convention a multilateral regime to address the illicit export and import of cultural objects met with limited success given the narrow interpretation taken of articles 3 and 7 by a number of States. As such, some States will only restrict the import of a limited range of illicitly exported cultural property. The UNIDROIT Convention attempts to introduce some clarity into the myriad of interpretations that could be taken of the 1970 Convention by introducing a regime that allows a claimant to request the return of cultural objects illicitly exported. Addressing this complicated issue required the balancing of the interests between those States that wished to see all illicitly exported cultural property made an illicit import, and those States which were reluctant to have to enforce any foreign export law. In seeking a compromise, the issue of ownership was separated from the issue of illicit export and import, so that Chapter III of the

The return, restitution and repatriation of movable cultural heritage 209 UNIDROIT Convention does not address the issue of ownership in any way. The regime attempts to return the cultural property to the State from which it was illicitly exported without necessarily determining who in that State is entitled to possession or ownership of the cultural property. As Prott notes, ‘it is the physical presence on the territory (of the exporting State) and the refusal to give support to the wrongful action which are important’ and supported in Chapter III.282 Since the issue of ownership is not being dealt with, and that the primary intention is to have the cultural property restored to the State from which it was illicitly exported, the Convention requires the Contracting State, rather than an individual owner or possessor, to make a request for the restitution of the cultural object. Article 5 therefore declares that: A Contracting State may request the court or other competent authority of another Contracting State to order the return of a cultural object illegally exported from the territory of the requesting State. The requirement that it be the State rather than the owner that makes the request for restitution is important since in some cases it may very well be the owner of the cultural object that has exported the object contrary to the export laws of the State; usually in order to access a more lucrative art and antiquities market. The illegality of the export is necessarily a matter to be determined by the exporting State. The Convention does, however, provide that a ‘cultural object which has been temporarily exported from the territory of the requesting State, for purposes such as exhibition, research or restoration, under a permit issued according to its law regulating its export for the purpose of protecting its cultural property and not returned in accordance with the terms of that permit shall be deemed to have been illegally exported’. This merely ensures that the exporting State’s claim of illegal export will be recognised in these circumstances. Article 5(1) does not require that all illicitly exported cultural objects be returned. It merely indicates that a State may ‘request’ the return of the object. This request need only be acceded to if the cultural objet falls within a specific category of cultural objects. This recognition that not all illicit exports will need to be returned was part of the compromise solution that attempted to identify a certain class of cultural objects that will be returned; necessarily leaving some cultural objects outside the resulting regime. In this sense, the compromise is similar to that which might be interpreted as having resulted from the 1970 Convention. However, the UNIDROIT Convention attempts to widen the scope of the categories considerably. It does so in article 5(3), which declares that: The court or other competent authority of the State addressed shall order the return of an illegally exported cultural object if the requesting State

282 Prott (1997) op. cit., p. 52.

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The return, restitution and repatriation of movable cultural heritage establishes that the removal of the object from its territory significantly impairs one or more of the following interests: a b c d

the physical preservation of the object or of its context; the integrity of a complex object; the preservation of information of, for example, a scientific or historical character; the traditional or ritual use of the object by a tribal or indigenous community, or establishes that the object is of significant cultural importance for the requesting State.

The broadening of the scope of objects that will be made illicit imports when illicitly exported from another State was, unsurprisingly, a contentious and hotly debated topic during negotiations.283 The resulting provision reflects this in some of its complexities and drafting peculiarities; as well as the scope of varying interpretations that can be taken of it. The intent was to introduce some criteria to limit the class of cultural objects subject to import restrictions. Broadly this required that the cultural object be of some significance to the requesting State rather than merely being a class of prohibited exports. The difficulty was to determine exactly what interest might be involved. Whilst slightly obscured in the provision, two distinct bases for the return are set out. The first is that return will be ordered if the requesting State can establish ‘that the object is of significant cultural importance for the requesting State’. While relatively straightforward in the sense that the requesting State needs simply establish the ‘significant cultural importance’ of the object, the reality is that this is likely to apply in a relatively small number of cases. The phrase ‘significant cultural importance’, while poorly phrased and arguably tautological, does raise the threshold required for return and imposes on the requesting State a considerable burden of proof. Simply asserting that the object in question is of significant cultural importance will not necessarily mean that the court or other body in the importing State will concur with that assertion. Much will depend on how a court or other competent authority will apply this provision, As such, it has been argued that ‘it is unlikely that the courts would challenge a claim by the requesting State that the object is of “significant cultural importance” ’.284 This, however, is unlikely to be the case in the courts of States such as the US and the UK. The second basis for return is if the requesting State can establish that the removal of the object from its territory significantly impairs one or more of the interests listed in (a) to (d). Part of the difficulty in interpreting this provision lies in the timing of the interest impaired. Since this deals with illicitly exported cultural objects, the interest impaired, for example in relation to the physical preservation

283 Ibid., pp. 55–61. 284 Valentin, op. cit., p. 114.

The return, restitution and repatriation of movable cultural heritage 211 of the object or the preservation of scientific information, will already have occurred and be irreversible. Return of the object will not necessarily remedy or reverse the interest impaired. Nevertheless, Prott interprets this article as including cases where, for example, the original removal of the object was from a monument or archaeological site, and that removal had damaged the object or had caused a loss of information by the removal from its archaeological context.285 This interpretation will thus be of an interest that had been impaired, rather than one which, at the time of the request, is being impaired and will continue to be impaired. It acts as a form of punishment and to ‘deter damaging activities of the types listed’ in (a) to (d).286 It will also apply to an interest which, at the time of the request, is being impaired, and will continue being impaired until such time as the object is returned; such as the impairment of the integrity of a complex object, which can only be addressed through the illicitly exported object being reunited with the other components of the complex object, such as a temple and its incorporated statues or idols. Similarly, the absence of an object may impair the traditional or ritual use that a tribal or indigenous community would make of that object. The burden of establishing that one of the interests listed has, or is being, significantly impaired lies with the requesting State. The scope for interpreting when one, or more, of the interests listed in being impaired is considerable, as is the requirement that the impairment be significant. Nevertheless, this provides a minimum threshold for the return of cultural property illicitly exported. Importantly, it is not mandatory in the sense that a State may, in accordance with article 9, apply any rules more favourable to the restitution or the return of stolen or illegally exported cultural objects than provided for by this Convention’. As such, a State need not necessarily require that a requesting State prove either that the object is of significant cultural importance for the requesting State or that the removal of the object from its territory significantly impairs one or more of the interests listed in (a) to (d). It may simply be willing to return the illicitly exported cultural property upon request supported by evidence of the illicit export.287 Underscoring that the burden of proof lies with the requesting States, article 5(4) provides that any request ‘shall contain or be accompanied by such information of a factual or legal nature as may assist the court or other competent authority of the State addressed in determining whether the requirements claim’ set out in article 5(1) and (3) have been met.

285 Prott (1997) op. cit., pp. 56–7. 286 Ibid., p. 58. 287 As was the case when Australia returned 20 tons of paleontological material illicitly excavated and exported from China in 2004. See Forrest (2004) 27 University of New South Wales Law Journal, op. cit., p. 605.

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Time limitations The time limitations that apply to a claim for the restitution of stolen objects is also applied to the request for the return of illicitly exported cultural objects. Article 5(5) thus substantially replicates article 3(1) by providing that: Any request for return shall be brought within a period of three years from the time when the requesting State knew the location of the cultural object and the identity of its possessor, and in any case within a period of fifty years from the date of the export or from the date on which the object should have been returned under a permit referred to in paragraph 2 of this article. To this extent, there is no difference in the time limitations between stolen and illicitly exported cultural objects. This is of importance in cases where an object is both stolen and illicitly exported, which is usually the case with regard to illicitly excavated and exported cultural property where the State claims ownership of all archaeological objects. Since this article deals with export and not ownership, questions of inalienability do not arise, and as such, no exceptions to these time periods, such as those contained in articles 3(4), (5) and (8) are provided for.288 Compensation With the provision for compensation in certain circumstances for possessors of stolen cultural objects, arose the question of compensating those from whom illicitly exported cultural objects are taken. In a broad sense, there was some recognition that holders of illicitly exported cultural property might be less able to determine the status of the cultural object than would be the case if the cultural property was stolen. As such, holders might be less blameworthy, and a lower level of due diligence might be required. As such, while article 6 replicates in broad outline the compensation regime applied in article 4, it differs in some important details. Article 6(1) provides that: The possessor of a cultural object who acquired the object after it was illegally exported shall be entitled, at the time of its return, to payment by the requesting State of fair and reasonable compensation, provided that the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported. While the same standard required of the possessor is set out in article 6(1) as was set out in article 4(1) regarding stolen cultural objects, being that the possessor

288 Prott (1997) op. cit., p. 62.

The return, restitution and repatriation of movable cultural heritage 213 ‘neither knew nor ought reasonably to have known at the time of acquisition’ of the relevant illegality, article 6(2) sets out a more limited range of factors that might be taken into account in determining this knowledge. It provides simply that in ‘determining whether the possessor knew or ought reasonably to have known that the cultural object had been illegally exported, regard shall be had to the circumstances of the acquisition, including the absence of an export certificate required under the law of the requesting State’. The failure to include the factors that appear in article 4(3) in relation to stolen cultural property ‘does suggest that the standard of care in respect of stolen cultural objects is higher than that required in respect of illicit export’.289 That is not to say that these factors cannot be taken into account. Ultimately it is the court seized with the matter that will determine factors that might be relevant to the possessor’s knowledge subject to the minimum standard set out in these articles.290 Usually, however, it is a relatively easy task to determine whether the possible State of origin of any given cultural object has any export restrictions and what certification is needed for legal export. As such, the absence of an export certificate was given particular prominence in article 6(2). As to what might be fair and reasonable compensation and when it is to be paid in the case of stolen cultural object applies equally here. However, in this case it is the requesting State that is actually identified as the entity required to pay compensation; though that State is essentially free to obtain the funding from any other source.291 Furthermore, article 6(4), mirroring in some respects article 7(b) (ii) of the 1970 Convention, requires the requesting State to bear the cost of returning the cultural object, though this is without prejudice to the right of that State to recover costs from any other person. These costs may be taken into account by the court seized with the matter in determining what is to be fair and reasonable compensation in the circumstances.292 The payment of compensation for cultural objects by many poor developing States may be prohibitive given the vast sums obtained for such objects on the art and antiquities market of many other States. Payment of fair and reasonable compensation may simply not be possible. Since the aim of Chapter III is to have the relevant cultural object returned to the State from which it was illicitly exported, and does not address issues of ownership, a solution was constructed in article 6(3). It provides that: Instead of compensation, and in agreement with the requesting State, the possessor required to return the cultural object to that State may decide:

289 Prott (1997) op. cit., p. 64. 290 In R v. Yorke (1998) 166 NSR (2d) and Attorney-General of New Zealand v. Ortiz [1982] 2 WLR 10; [1982] 3 WLR 570; [1983] 2 WLR 809; [1984] AC. 1 (HL), the possessor was found to have known or ought to have known that an export certificate was required and that the cultural object was therefore likely to have been illicitly exported. See discussion in Prott (1997), op. cit., p. 65. 291 Cf. article 4(1) which does not indicate who is to pay compensation. 292 Prott (1997) op. cit., p. 67.

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to retain ownership of the object; or to transfer ownership against payment or gratuitously to a person of its choice residing in the requesting State who provides the necessary guarantees.

The possessor may therefore simply return the cultural property to the State of origin and retain possession. This will apply to cases where a person has acquired possession after the cultural object was illicitly exported, and the requesting State will allow, in accordance with its national legislation and policies, for ownership to be held by the possessor, whether a national of that State or a foreign national. The phrase ‘in agreement with the requesting State’ ensures that whatever solution is adopted, it is consistent with that State’s national legislation and policies. Similarly, to transfer ownership against payment or gratuitously to a person of its choice, residing in the requesting State who provides the necessary guarantees, must accord with the national legislation and policies of the requesting State. Again, these guarantees are the conditions that the requesting State may set for the return of the cultural object against payment or gratuitously. This mechanism allows the requesting State to come to some arrangement with the possessor and other parties in the requesting State which provides mechanism for return without the necessity of payment from the State itself. Importantly, an owner in the requesting State who illicitly exports the cultural property cannot benefit from article 6. Article 6(1) makes it clear that the possessor is someone who acquired possession after the illicit export, and article 6(3) will consequently only apply to such a possessor. In the case where the possessor of the illicitly exported cultural property is the original owner, the object may be subject to forfeiture and article 6 will not interfere with such an action.293 The exception to the rule One of the difficulties in considering the protection of cultural property is the scope of objects contained within its broadest realm. Particularly difficult is addressing archaeological material on the one hand, and recent works of art on the other, in the same protection regime. Article 7 attempts to carve out an exception to the regime that requires illicitly exported cultural property to be returned in the case of some recently created art work. It provides that the provision of Chapter III will not apply where ‘the object was exported during the lifetime of the person who created it or within a period of fifty years following the death of that person’.294 This provision thus sides with the free market in such art work rather than giving weight to the cultural significance of the work for the State from which it was exported. Given the difficulties that arise in relation to illicitly

293 Prott (1997) op. cit., p. 66. 294 Article 7(b)(i).

The return, restitution and repatriation of movable cultural heritage 215 exported archaeological objects, this exception applies to a rather less problematic component of the cultural property. Having carved out such an exception to Chapter III, it was then thought necessary to carve out an exception to this exception; that is that the exception will not apply ‘where a cultural object was made by a member or members of a tribal or indigenous community for traditional or ritual use by that community and the object will be returned to that community’. It thus acts to narrow the scope of the exception essentially only to artwork created by a known artist and not created for tribal or indigenous purposes. Finally, a seemingly unnecessary exception was included in that Chapter III will not apply where ‘the export of a cultural object is no longer illegal at the time at which the return is requested’.295 Prott explains that this was included since ‘there would be little virtue in a State depriving one of its own citizens of an object which, on return, could immediately be legally re-exported’.296 This is certainly true, though it is unclear exactly why a State would have sought the return of such cultural property in such circumstances and therefore requiring the exception to be inserted. While exceptionally unlikely to have occurred, this exception appears to have been included as a matter of extreme caution. Jurisdiction The Convention essentially seeks to have a stolen and illicitly exported cultural object restored to the State from which it was stolen or exported. The mechanism for doing this is for Contracting States to admit such claims, so that a claimant or requesting State can take the appropriate action in the State where the cultural object is found. However, in both article 3 in relation to the restitution of stolen cultural objects, and article 5 in relation to the return of illicitly exported cultural objects, it is assumed that the legal possessor or owner is in the same jurisdiction as the object. This, however, is not the case since often a legal possessor or owner will consign cultural objects for sale in another jurisdiction. As such, three jurisdictions may be implicated in the attempt to restore the cultural object; the jurisdiction of the claimant or requesting State itself; the jurisdiction in which the cultural object is physically located; and the jurisdiction in which the legal possessor or owner is located. However, many jurisdictions do not recognise the location of an object as a ground for jurisdiction, so that action is limited to the jurisdiction in which the legal possessor or owner is located. In order to then have the object returned, any ruling from that jurisdiction will need to be enforced in the jurisdiction in which the object is located; which is not always the case and depends on agreement between the two States. To address this problem, the jurisdiction in which the cultural object is found is recognised by States

295 Article 7(1)(a). 296 Prott (1997) op. cit., p. 69.

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Parties to the Convention as a valid ground of jurisdiction.297 Article 8 provides that: A claim under Chapter II and a request under Chapter III may be brought before the courts or other competent authorities of the Contracting State where the cultural object is located, in addition to the courts or other competent authorities otherwise having jurisdiction under the rules in force in Contracting States. As such, a claimant or requesting State can either take action in the jurisdiction in which the object is found or in which the legal possessor or owner is located. A third alternative is also provided in article 8(2), which simply provides that the ‘parties may agree to submit the dispute to any court or other competent authority or to arbitration’. A further problem arises when a claimant, for example, takes action in the State in which the legal possessor is located, but not in the State in which the cultural object is located. This would not prevent the legal possessor from moving the cultural object to a third non-party State. This scenario arises particularly when cultural objects are consigned for sale or auction in a third State. Article 8(3) addresses this by allowing provisional measures, including protective measures, to be taken in that third State so as to secure the location of the cultural object, even when the claim for restitution or request for return of the object is brought before the courts or other competent authorities of another State Party. While article 5 refers to actions taken for the return of illicitly exported cultural property ‘in the court or other competent authority of another Contracting State’, article 3 does not indicate the forum for such an action. Since article 3 concerns stolen cultural property it is implied that it is a court that will address the issue. While courts in some jurisdictions may also address issues of illicit export, some jurisdictions have specialised administrative bodies to address such issues, requiring article 5 to include recourse to other competent authorities. Exactly how a claimant of a requesting State is to access the court of other competent authority is set out in article 16, which requires that at the time of signature, ratification, acceptance, approval or accession, each State declares that claims will be admitted in accordance with one of more of the following procedures: ‘(a) directly to the courts or other competent authorities of the declaring State; (b) through an authority or competent authorities by that State to receive such claims or requests and to forward them to the courts or other competent authorities of that State; (c) through diplomatic or consular channels’. Furthermore, each State Party can designate specific courts or other competent authorities that have the power to order the restitution or return of cultural objects in accordance with the Convention. While these avenues are capable of being changed by the relevant State,298 the declaration

297 Ibid., pp. 71–2. 298 Article 16(3).

The return, restitution and repatriation of movable cultural heritage 217 allows a claimant or requesting State to determine the necessary procedural guidelines to initiate a claim. Non-retrospectivity While fundamental principles of international law, including the Vienna Convention on the Law of Treaties,299 provide that Conventions do not apply retrospectively, the Convention sought to ensure that it would apply only to prospective acts for the relevant State Parties. As to what the relevant States are, Article 10(1) provides that Chapter II shall apply: only in respect of a cultural object that is stolen after this Convention enters into force in respect of the State where the claim is brought, provided that: a b

the object was stolen from the territory of a Contracting State after the entry into force of this Convention for that State; or the object is located in a Contracting State after the entry into force of the Convention for that State.

In a simple scenario where the cultural object is stolen in one State and claimed from the possessor who holds the object in another State, both States must have been parties to the Convention at the time of the theft. However, as Prott explains, some difficulties arise with the application of this article when more than two States are involved in the given fact scenario, such as cases where the possessor is in one State, the cultural object is in another and the claimant is in a third State; or where the cultural object is stolen from a non-party State whilst on loan from a State Party.300 If the State where the claim is made is the State in which the possessor is to be found, then, in accordance with article 10(1)(a), the State in which the object was stolen and the claimant’s State need to be parties to the Convention at the time of the theft. The State of the location of the cultural object need not be a party. Issues of enforcement of a judgment obtained in the State of the possessor will be a matter which falls outside the ambit of the Convention. Similarly, where the claim is made in the State of location, it and the State of the claimant must have been party to the Convention at the time of the theft. Article 10(b), however, provides an obscure alternative to the State in which the theft occurred being a party to the Convention. Since it is an alternative to the State from which the theft occurred, the State in which the claim is made must be the State of the possessor. As such, a scenario appears to have been considered where the State of the possessor and the State in which the cultural object is found are parties to the Convention but not the State in which it was stolen. It is here

299 Article 28, Vienna Convention. 300 Prott (1997) op. cit., pp. 78–81.

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that Prott suggests that the possible scenario is that the cultural property is on loan in a third State that is not a party to the Convention at the time of the theft.301 Article 10(2) provides that Chapter III ‘shall apply only in respect of a cultural object that is illegally exported after this Convention enters into force for the requesting State as well as the State where the request is brought’. In some circumstances, however, the location of the cultural object and the legal possessor may be in different States. The latter may therefore refer either to the State in which the cultural object is located or the State in which the legal possessor or owner is located. It does not, however, require both States to be a party since only the requesting State and the State where the request is brought need be a party. So, for example, if an action is brought in the State in which the legal possessor is located when the cultural object is located in a third State, the third State need not be party at any time. Issues as to the enforcement of a judgement from the State in which the legal possessor is located in the State in which the cultural object is located falls outside the ambit of the Convention. Naturally, it would be advantageous if the State of location was a party, particularly as it may give rise to provisional measures provided for in article 8(3). Out of an abundance of caution to ensure that full recognition is given to the prospective nature of the Convention, article 10(3) provides that: This Convention does not in any way legitimise any illegal transaction of whatever nature which has taken place before the entry into force of this Convention or which is excluded under paragraphs (1) or (2) of this article, nor limit any right of a State or other person to make a claim under remedies available outside the framework of this Convention for the restitution or return of a cultural object stolen or illegally exported before the entry into force of this Convention. An evaluation of the UNIDROIT Convention Many commentators, especially those involved in or supportive of the art and antiquities market, not only oppose the range of cultural objects covered in the UNIDROIT Convention and the imposition on the purchaser of obligations of due diligence, especially in relation to the ability to claim compensation, but also appear to continue to misinterpret many of these aspects of the Convention.302 It has been argued that the prerequisites for compensation, particularly the due diligence requirement necessary to show that the purchaser neither knew, nor ought reasonably to have known that the object was stolen, is an onerous burden on purchasers.303 Similarly, the Convention has been criticised for creating obstacles

301 Ibid., p. 80. 302 For example, Valentin, op. cit., pp. 107–17; van Gaalen and Verhij, op. cit., pp. 7 and 10; and examples cited in Prott (1997) op. cit., pp. 87–8. 303 Valentin, op. cit., pp. 110–13.

The return, restitution and repatriation of movable cultural heritage 219 for collectors and art dealers as well as hindering museum acquisition policies.304 While these effects are quite true they are hardly to be regarded as criticisms but the very results which were sought to be achieved. One of the very aims of the Convention is ‘to penalize those acquiring cultural objects who fail to make serious inquiries into their origin’.305 It is recognition that demand side regulation and restraint is required to address the illicit trade. Many of the criticisms levelled by commentators are reflected in the attitudes of States. Some States that had advocated a position at polar ends of the import and export spectrum remain opposed to the compromise reached in the Convention. These positions were entrenched to the extent that some market States’ obligations to their constituents require the promotion of a free trade of cultural property, while a number of ‘source’ States obligations to their constituents require the elimination of all trade in their cultural heritage. More specifically, a number of States remain opposed to the imposition of any limitation periods, while others consider the limitation periods too generous and create uncertainty in the art and antiquities market. This opposition is not always consistent with the general approach taken in the particular State. The UK, for example, while ostensibly governed by the nemo dat quod non habet, is opposed to the long limitation periods as it creates uncertainty for heirs and bona fide purchasers of cultural objects in its important art and antiquities market.306 It is also the case that, as a parallel convention to the 1970 Convention, these difficulties compound those apparent in the earlier instrument, resulting in few States signing, and even fewer ratifying, the UNIDROIT Convention. The success of the Convention, it is argued, lies not with an increase in the actions taken to return cultural objects, but in the changing practices of those in the art and antiquities market is making greater efforts to check the provenance of cultural objects in circulation.307

The illicit trade in Iraqi cultural property The Second Gulf War has thrown into sharp relief many of the pressing issues that impact on the protection of cultural property.308 This includes not only the protection of cultural property during an armed conflict, but also the responsibility of an occupying power to protect the cultural property and prevent the illicit movement of cultural property in the occupied territory. Whilst the protection of cultural property during an armed conflict has been dealt with in some detail in Chapter 3, it is worth considering this again in the context of the protection of cultural property in occupied territories and, more importantly, for the subject of this

304 305 306 307 308

Van Gaalen and Verhij, op. cit., p. 12. Schneider, op. cit., p. 11. Jenkins, op. cit., p. 168. Prott (1997) op. cit., p. 87. For a more detailed discussion on the conflict in Iraq, see Chapter 3.

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chapter, the illicit trade in Iraqi cultural property. Whilst the problem of the illicit trade in cultural property has existed for a considerable time, and indeed flourished despite international efforts to eradicate it, it is the illicit trade in Iraqi property which has drawn the world’s attention to this ‘awful business’309 and has been a central feature in the furore over the Coalition involvement in Iraq. The protection of cultural property in Iraq prior to the First Gulf War was one of the strictest and most effective legal regimes in the world, and little Iraqi property left the country, legally or illegally.310 Following the Iraqi invasion of Kuwait, significant quantities of cultural property were transferred from Kuwaiti cultural institutions to Iraqi museums. With the commencement of the armed conflict involving the Coalition in a bid to free Kuwait of Iraqi occupation, the cultural property in both Iraq and Kuwait came under threat. From the looting of museums in Kirkuk, Mosul and Basra in 1991 to the looting of the Baghdad Museum in 2003, the stolen cultural property of Iraq has leached into the international art and antiquities market. More pervasive, however, has been the illicit excavation of cultural property from sites throughout Iraq and, devoid of provenance, has been illicitly exported and sold on the art and antiquities market. Within weeks of the Coalition invasion of Iraq, the first looted archaeological objects appeared on the art and antiquities markets in New York, Rome311 and London.312 While impoverished locals supply the trade by illicitly excavating archaeological sites, it is the dealers and middlemen that initiate the supply to the market, though these are not necessarily unscrupulous shady figures, but may include diplomats, Coalition military personnel, aid workers and the media.313 By April 2004, around 2,000 objects had been seized in foreign States, including US, France, Italy and Jordan.314 In 2008 alone, US authorities returned over 1,000 cultural objects to Iraq.315 Whilst Iraqi heritage continues to be seized, important objects stolen from the museum remain unaccounted for. At the same time, the provenance of some cultural heritage that has entered the art and antiquities market remains questionable. This includes, for example, the Schøyen

309 Alder and Polk, op. cit., p. 35. 310 See K. Sykes, ‘The Trade in Iraqi Antiquities: A Conference held by the Institute of Art and law in association with Clyde and Co. London, 16th June 2003’ (2003) 7(3) Art Antiquity and Law 299, 304. 311 M. Bailey,’ Seized: over 600 objects looted from Iraq’, The Art Newspaper, September 2003, 1. In September 2003, losses from the National Museum in Baghdad amounted to 13,000 objects, which included 4,795 cylinder seals, 4,997 smaller objects such as amulets and necklaces, and 545 pieces of pottery and bronze weapons. 312 J. Doole, ‘In the News’ (2003) 13 Culture Without Context 15. 313 The first prominent figure to have been arrested for illegally importing Iraqi cultural heritage into the US is writer Joseph Braude, author of The New Iraq: rebuilding the country for its people, the Middle East and the World, having been found by New York Customs to have in his possession three cylinder seals with the Iraq Museum inventory numbers still attached. 314 M. Bailey, ‘The National Museum in Baghdad one year on’, The Art Newspaper, April 2004, 5. 315 H. Stoilas, ‘ US returns over 1,000 antiquities to Iraq’, The Art Newspaper, October 2008, p. 6.

The return, restitution and repatriation of movable cultural heritage 221 collection of Aramaic incantation bowls, believed to have come from Iraq and Jordan.316 The 1954 Hague Convention, whilst providing for rules that address the movement of cultural property and the duties of an occupying power to protect the cultural property in the occupied territory, proved of little value during the conflict in Iraq, primarily because the States central to the Coalition, the US and UK, were not, at that time, party to the Convention. For the most part, however, attempts were made to abide by the rules of the 1954 Hague Convention, though not necessarily by the First Protocol, nor the Second Protocol which, at the time, was not yet in force. As such, the First Protocol’s provision, which requires a State Party to ‘undertake to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property as defined in Article 1 of the Convention,’317 was not fully implemented. Nor was the Second Protocol’s provision requiring each occupying State to ‘prohibit and prevent in relation to the occupied territory, any illicit export, other removal or transfer of ownership of cultural property’.318 Essentially, these provisions did not apply to the conflict in Iraq, and may, in the future, not apply to other armed conflicts to which important international States such as the US and UK, are engaged. Whilst the 1954 Hague Convention itself provides some protection for cultural property during the armed conflict, the conflict in Iraq has shown that the greatest risk posed to cultural property does not come directly from the belligerent States’ direct actions, but from private actors, either civilians or soldiers acting beyond the scope of their duty. The breakdown in law and order during most armed conflicts and the consequent opportunities for illicit excavation, looting and illicit trafficking, is the greatest threat to cultural property.319 This continues to apply in Iraq and in other archaeologically rich States such as Afghanistan, and in the continuing conflict in the Levant. Since the fallout from the conflict in Iraq includes the illicit excavation, export and trade in Iraqi cultural property, the 1970 Convention is applicable. Unfortunately, its application to the illicit trade in Iraqi property has highlighted some of its inherent weaknesses, particularly because of varying Coalition States’ implementations. This is particularly so for three of the leading coalition States involved in the invasion of Iraq, Australia, the UK and the US; the more so since Australia’s implementation of the Convention differs quite dramatically from that of the UK and the US. While all States Parties to the Convention will need to apply it to Iraqi property imported, or attempted to be imported, into its territory, these three coalition States are more likely to have such imports since large numbers of their citizens have been engaged in both public and private capacities in the territory of Iraq or its immediate neighbours.

316 317 318 319

M. Bailey, ‘University criticised over incantation bowls’, The Art Newspaper, May 2007, p. 6. Part I, paragraph 1 of First Protocol. Article 9(1)(a), Second Protocol. R. O’Keefe, The Protection of Cultural Property in Armed Conflict, New York: Cambridge University Press, 2006, p. 2.

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Iraqi law provides that the cultural property housed in the looted museums, as well as all archaeological material, including unexcavated and undiscovered material, vests in the State; and export is prohibited. However, simply because Iraq prohibits the export of archaeological property does not mean that another State, such as the US, will necessarily prevent its import. While Australian legislation deems such import illegal, the US would only do so in relation to material stolen from the Baghdad and other museums, and not necessarily material illicitly exported. Similarly, there will be a prohibition placed on US public museums and similar institutions acquiring this material, but not necessarily on private importers. Whilst all archaeological material looted from the Iraqi public museums and libraries cannot be imported, the archaeological property looted from sites across the country can.320 Even in the Australian implementation of the 1970 Convention, while restriction exists on the importation of this Iraqi property, it is not policed at the customs barrier, and the successful seizure and restitution of imported cultural property is heavily dependent on Iraq being able to identify the loss, address the issue with Australia through diplomatic channels, and have the financial ability to prove its claim and pay for the physical restitution back to Iraq. Despite the US, Australia and Iraq being a party to the 1970 Convention at the time of the conflict, it proved inadequate to the task. Prior to the Second Gulf War, objects most likely to have been illicitly excavated and exported from Iraq were freely available on the art and antiquities markets of the US and the UK.321 The fate of Iraq’s cultural property hung in the balance in 2003, even though two international Conventions had been adopted to address this very issue. Without all parties to the conflict bound by the conventional provisions, and with inconsistent interpretations and implementations of some of the conventional norms by those States that were bound, the international community had to resort to an ad hoc approach to protect Iraq’s cultural property. Given the furore over the looting of the Baghdad Museum and Library, the international community was cognisant of the lack of a vigorous international protective regime and the need to address the issue. An initial response to the looting was the adoption in May 2003 by the United Nations of Resolution 1483, which replaced the sanctions imposed on Iraq after the First Gulf War.322 The Resolution requires member States to ‘take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property … including by establishing a prohibition on trade in or transfer of such items and items in respect to which reasonable suspicion exists that they have been illegally removed …’. The main Coalition States have done so.323

320 P. Gerstenblith and K. Hanson, ‘Congressional Responses to the Looting of Iraq’s Cultural Property’ in L. Rothfield (ed.), Antiquities Under Siege: Cultural Heritage Protection after the Iraq War, Lanham: AltaMira Press, 2008, pp. 103–6. 321 N. Brodie, ‘The Western Market in Iraqi Antiquities’ in Rothfield, op. cit., pp. 63–73. 322 Security Council Resolution 1483, 22 May 2003, para 7. 323 For a more detailed account of the implementation of resolution 1483 see C. Forrest, ‘The illicit trade in Iraqi heritage: Considerations for the Australian art and antiquities market’ (2004) 29 Alternative Law Journal 121.

The return, restitution and repatriation of movable cultural heritage 223 In the UK, an Order in Council324 was introduced which bans the trade in illicit Iraqi property, and importantly, reverses the burden of proof in relation to the mental element of the offence so that defendants will bear the burden of proving that they did not know that the property concerned was looted Iraqi cultural property. Essentially the Order prohibits the importation or exportation of illicit Iraqi property, and makes dealing in such property an offence. While the lack of an effective administrative structure to support this regime has been criticised,325 and the reversal of the burden of proof raised possible human rights issues,326 the Order appears to have been very effective in eliminating the traffic of Iraqi property.327 Similarly, the US passed the Emergency Protection of Iraqi Cultural Antiquities Act in 2004. Unfortunately, this law was only implemented in 2007.328 Australia, like its Coalition partners, has implemented legislation to address UN Resolution 1483. The Iraq (Reconstruction and Repeal of Sanctions) Regulations 2003 makes it an offence to transfer title or trade in items of Iraq’s cultural property that were illegally removed from Iraq. The offence may be committed if a person ‘ought reasonably to suspect was illegally removed from’ Iraq. Other major art and antiquities market States, such as Switzerland, also adopted legislation to give effect to UN resolution 1483.329 With the formal end of the US led occupation on 28 June 2004, the obligation to protect Iraq’s cultural property passed to the Iraqi government; but the continued presence and active engagement of the mainly US Coalition force comes with continuing international obligations. Unfortunately the illicit excavation and export of Iraqi cultural property continues.

324 The Iraq (United Nations Sanctions) Order 2003, S.I. 2003/1519. K. Chamberlain, ‘The Iraq (United Nations Sanctions) Order 2003 – Is its Human Rights Act Compatible?’ (2003) 8(4) Art Antiquity and Law 357. 325 K. Sykes, ‘Consequences of the Iraq War: Sudden and Draconian’, The Art Newspaper, July 2004, 23. 326 Chamberlain (2003) op. cit., p. 357. 327 N. Brodie, ‘The Plunder of Iraq’s Archaeological Heritage, 1991–2005 and the London Antiquities Trade’ in B. Brodie, M.M. Kersel, C. Luke and K. Walker Tubb, Cultural Heritage, and the Antiquities Trade, Gainsville: University Press of Florida, 2006, p. 217. 328 Gerstenblith and Hanson, op. cit., p. 108. 329 See Gerstenblith (2006) op. cit., pp. 333–4.

5

World Heritage Convention

Introduction The World Heritage Convention embodies the notion that ‘we are one, but we are many’.1 It captures, in the words of Robert Meyer, the ‘general sentiment and concern on the part of the peoples of the world that certain cultural and natural areas “of outstanding universal value” belong to mankind as a whole, and are important to his psychological, moral, spiritual, social, educational and recreational well-being’.2 The recognition of this interest of humankind as a whole in the cultural heritage situated in various sovereign States was, in the twentieth century, coupled with a realisation that this heritage was threatened in a great number of ways. Whilst armed conflict had long been the cause of destruction, increasing urbanisation, industrialisation, social and economic upheaval, pollution and climate change were all contributing to the decay, degradation and destruction of this ‘world heritage’. Even when recognised as having outstanding universal value, this heritage was further threatened by the phenomenal rise in international tourism and the growing accessibility of sites throughout the world.3 National protection for monuments The protection of certain forms of cultural heritage, particularly monuments and archaeological sites, is not new. Indeed, as was evident in Chapter 3, early restraints were placed on the destruction of cultural heritage during war, and in Chapter 4, a great variety of legislation protected movable and immovable cultural heritage in times of peace. This included, in particular, the protection of monuments and archaeological ruins. In 1462, for example, a Papal Bull of Pius II protected

1 Lyrics from the song I am Australian (or We are Australian), written in 1987 by Bruce Woodley of the Seekers and Dobe Newton of The Bushwackers. 2 R.L. Meyer, ‘Travaux Preparatoires for the UNESCO World Heritage Convention’ (1976) Earth Law Journal 45, 46. 3 Ibid., p. 46.

World Heritage Convention 225 monuments of ancient Rome,4 while Elizabeth I of England issued a proclamation in 1560 against the breaking or defacing of Monuments of antiquity in churches, fearing their destruction during the Reformation.5 Similarly, a Royal Proclamation of 1666 forbade the destruction of ancient monuments and relics in Sweden. Italy developed early legislative protection for monuments and archaeological sites following the discovery of Herculaneum and after Pompeii in the early 1700s.6 The French experience, both in regard to the risks posed to its own cultural heritage during the revolution, and the subsequent appropriation and plunder of its enemies’ cultural heritage following French victories in States such as Italy and Egypt, laid the bedrock for the development of cultural property, especially monuments, in the early nineteenth century. This notion of protecting ‘monuments’ was reflected in Antione Quatremére de Quincy’s view, expressed in 1789, that certain ‘monuments’ were of importance because of the effect of the edifice rather than to its intention or purposes.7 This notion developed further and in 1830, the Comite des travaux historiques was set up to provide protection for such monuments. By 1849, some 3,000 monuments were listed, with State funds allocated for their preservation. While some European States had a form of legislation protection monument, such as Prussia in 1823,8 by 1850 many other European states had followed suit.9 By the end of the nineteenth century, the term historic monument ‘had a well-established meaning in national legislation throughout Europe and the New World, referring to immovable property, whether public or private, deserving of legal protection on its own historical, artistic or architectural terms, rather than on account of its contents or purpose’.10 These developments in national law were coupled with the international developments aimed at protecting cultural heritage in times of war.11 Whilst monuments had, for some time been protected, the protection of natural areas and landscapes12 is a more recent phenomena. The American experience of establishing a system of national parks of outstanding beauty and natural value contributed to the notion of holding such property in trust for the nation – not the individual States of America, but the nation as a whole, governed by the

4 L.V. Prott and P.J. O’Keefe, Law and the Cultural Heritage: Volume 1 Discovery and Excavation, Abingdon: Professional Books Ltd, 1984, pp. 34–5. This was, however, undermined somewhat by Pope Urban VIII’s declaration of the Coliseum as a public quarry. 5 R. O’Keefe, The Protection of Cultural Property in Armed Conflict, New York: Cambridge University Press, 2006, p. 28. 6 Prott and O’Keefe (1984) op. cit., pp. 35–7. 7 O’Keefe, op. cit., p. 28. 8 Prott and O’Keefe (1984) op. cit., p. 39. 9 O’Keefe, op. cit., p. 16. 10 Ibid., p. 28. 11 See Chapter 3. 12 On the notion of cultural landscapes, see K. Whitby-Last, ‘Cultural Landscapes’ in F. Francioni, The 1972 World Heritage Convention, Oxford: Oxford University Press, 2008, pp. 51–62.

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Federal Government.13 A similar process began in a number of British colonies, such as Canada, Australia, New Zealand and South Africa.14 The development of the Conventional regime The development of the World Heritage Convention itself had as much to do with the development of notions of the cultural heritage as it did with the evolving development of environmental law. The post Second World War process of industrialisation, urbanisation and emergence of independent States from colonial rule brought with it new threats to the cultural and natural heritage. Within this new world order, attention focused quickly on the need to protect not only the common environment of the oceans and the atmosphere, but also that of each nation as they contributed to the health of these international spaces. From this emerged initiatives to co-ordinate international action to protect the environment. At the same time, changes were evident in cultural heritage management, both nationally and internationally. At a national level, important developments emerged from the United States which played an important part in the development of the World Heritage Convention, including the development of the notion of a ‘World Heritage Trust’.15 In particular, historic preservation initiatives began to take into account environmental and anthropological perspectives in developing interdisciplinary preservation theories and practises.16 As such, a more complex, holistic view was taken of historic preservation and archaeology. At an international level, the founding of the International Council on Monuments and Sites (ICOMOS) in 1965, as ‘an international assembly of architects and specialists of historic buildings’17 also played an important role in the development of the World Heritage Convention. The decision by the Government of Egypt to build the Aswan High Dam on the Upper Nile in 1959, resulting in the flooding of an area of land containing archaeological sites and monuments, reflected the growing industrialisation of developing States, and the difficulties these States had in preserving the cultural and natural heritage in their territories with the demands of a developing economy. After an appeal from the governments of Egypt and Sudan for assistance in saving these

13 Early attempts included the Hot Springs Reserve established in 1832 and the Yosemite National Park in 1894 (inscribed on the World Heritage List in 1984). Yellowstone National Park, established in 1877, is regarded as the first truly national park. It was inscribed on the World Heritage List in 1978. 14 Such as the Royal National Park in Australia in 1879, the Rocky Mountain National Park in Canada in 1885, the Tongariro National Park In New Zealand in 1887, and the Kruger National Park in South Africa in 1926. 15 The concept of a World Heritage Trust was proposed by a White House Conference on International Cooperation in 1965. See further Meyer, op. cit., pp. 46–7. 16 S.M. Titchan, On the construction of outstanding universal value, PhD thesis, Australian National University, 1995, p. 76. 17 1964 International Charter for the Conservation and Restoration of Monuments and Sites (Venice Charter).

World Heritage Convention 227 archaeological monuments, UNESCO launched a campaign to which 50 States contributed more than US$40 million.18 The international co-operative efforts in dismantling the gigantic statues of Ramses II in the land to be flooded, and their transport and reconstruction on higher ground at Abu Simbel, suggested the need for a permanent co-operative regime to address similar crises in the future.19 In the 1960s, a number of similar events highlighted the need for a co-operative international regime to provide some form of protection to the cultural heritage found within a State but which had a value which transcended that State. Representing the fallibility of the cultural heritage, and the need to conserve it from the destruction of time and nature, the flooding of Venice and Florence in November 1966 drew attention to the need for international co-operation in responding to such natural disasters, as well as the need to plan for such eventualities. Again UNESCO spearheaded a campaign to save these historic cities. Similar international co-operative efforts were launched in 1970 to prevent the disappearance of the archaeological remains at Carthage, Tunisia,20 and to halt the degradation of the temples of Borobudur in Indonesia. The impetus for the development of an international protective regime was not only the recognition that many properties in individual States had significance for humankind as a whole, but also that a permanent system of co-operation was required to assist States in their role as guardians of this heritage. The Convention itself was a result of three separate international initiatives coming together at the same time. In 1970 UNESCO initiated the drafting of a treaty entitled ‘International Protection of Monuments, Groups of Buildings and Sites of Universal Value’. At the same time the International Union of the Conservation of Nature (IUCN) was drafting a treaty on the conservation of the world’s natural heritage, entitled ‘Convention for the Conservation of the World’s Heritage’.21 These two treaties were then considered by a working group established in 1968 by the UN conference on the Human Environment, and the process of combining the two drafts into one Convention began. With the adoption in 1972 of the Stockholm declaration on the Human Environment, and its support for the adoption by UNESCO of a Convention on the World’s Cultural and Natural Heritage, the way was paved for a relatively easy process of adding a new cultural heritage Convention to UNESCO’s mandate.

The World Heritage Convention The Convention is divided up into a number of chapters, most of which address the establishment of structures and mechanisms by which the world’s heritage

18 The final costs of this project exceeded $80 million. L. Patchett, ‘Activities to support the world heritage fund’ in Francioni, op. cit., p. 295. 19 Francioni, op. cit., pp. 12–13; UNESCO World Heritage Information Kit. p. 7; Meyer, op. cit., p. 46. 20 S. Bessis, ‘Carthage’s long-awaited rescue’, UNESCO Courier, September 1999. 21 Meyer, op. cit., p. 47.

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might be protected. Chapter I defines the world heritage to be governed by the Convention, while chapter II, arguably the most important chapter, sets out the international obligations of States Parties. Chapter III concerns the establishment of the World Heritage Committee, chapter IV the establishment of an international fund for the protection of the world heritage and chapter V the mechanism for obtaining international assistance in the protection of world heritage. An important part of the 1972 Conventional regime is the Operational Guidelines for the Implementation of the World Heritage Convention, adopted by the World Heritage Committee established under the Convention. The Operational Guidelines have been amended on a number of occasions, and effectively allow for a reinterpretation and application of the Convention to contemporary decision making. The most recent Operational Guidelines were issued in 2008. The World Heritage Convention came into force on 17 December 1975, three months after the twentieth instrument of ratification – that of Morocco. By January 2009 there were 186 States Parties. The preamble’s guiding principles The preamble is an important part of the Convention, not only justifying its existence, but introducing the fundamental principles upon which the conventional regime rests. The preamble notes the threat to the world’s natural and cultural heritage ‘not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction’.22 Furthermore, the consequences of such deterioration or disappearance of cultural or natural heritage are set out in recital two, explaining that it ‘constitutes a harmful impoverishment of the heritage of all the nations of the world’ – the world heritage. The introduction of the notion of a ‘world heritage’ in the Convention was unprecedented, and brought with it significant definitional problems. Whilst entitled the ‘World Heritage’ Convention, the Convention itself does not define this term. Instead, it embodies within this notion a number of principles which go some way in determining its content. Throughout the preamble, reference is made to some form of collective heritage; of a heritage that represents some form of commonality. In the second recital, the preamble notes that 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’. Thus, all the nations of the world are, for this purpose, treated as one entity, such that any determination of one nation’s cultural heritage will naturally affect the collective heritage. The fifth recital reiterates this notion by noting that the safeguarding of cultural heritage is of importance to ‘all the peoples of the world ’. Most revealing though, is the sixth recital, which considers that there is a need to preserve certain heritage ‘as part of the world heritage of mankind as a whole’. This clearly recognises the

22 First recital.

World Heritage Convention 229 conceptual existence of a heritage of humankind, and reflects a key principle underpinning the Conventional regime. It is from the existence of this notion that a duty to co-operate in a protective regime is found to rest in the ‘international community’.23 Furthermore, the preamble gives further content to the notion of a ‘world heritage’ by introducing the concept of ‘outstanding universal value’, the criteria upon which certain heritage can be elevated to ‘world heritage’ status. The term ‘outstanding universal value’ is used in both the seventh and eighth recitals to qualify the term ‘cultural and natural heritage’. Inexplicably, the term ‘outstanding interest’ rather than ‘outstanding universal value’ is used in the sixth recital. Neither term, however, is actually defined in the Convention itself. Giving effect to the ordinary meaning of the terms only goes some way in defining the terms with any certainty. Whilst this is problematic at times, it does also allow for evolving interpretations as the Convention ages and requires application in newer contexts. The key principle embodied in the preamble is the principle of international co-operation. The need for such co-operation reflects the era in which many States were achieving independence from colonial rule, and were struggling with balancing economic development with the governance of its environment and cultural heritage. The flooding of Venice and Florence, however, also illustrated that even developed States might require international assistance when faced with a natural calamity. As such, the third recital of the preamble gives a justification for the need for international co-operation, declaring that the protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific and technical resources of the country where the property to be protected is situated. As such, given the ‘magnitude and gravity of the new dangers threatening’ the world heritage, the seventh recital declared it ‘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’ to States in which the heritage is situated. This, the eighth recital explains, is achieved through the establishment of a conventional regime that provides for an ‘effective system of collective protection of the cultural and natural heritage of outstanding universal value, organised on a permanent basis and in accordance with modern scientific methods’. Importantly though, the international co-operative regime is not to replace any action that the State in which the heritage is found can, or ought to take.24 This co-operative

23 Article 6(1). 24 Seventh recital.

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regime is, given its mandate, achieved through the adoption of the Convention at UNESCO.25 Defining world cultural heritage For the purposes of the Convention, the following is considered to be ‘cultural heritage’: monuments: 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; groups of buildings: 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; sites: 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. The identification of three categories of cultural heritage, and their definitions, was the subject of intense negotiations between 1968 and 1972. At the heart of the development of a protection regime, both nationally and internationally, were monuments of historical and artistic value. Monuments were protected in a number of States but defined differently in the various national legislative instruments. Importantly, though, ICOMOS’ 1964 Venice Charter defined historic monuments very broadly as including not only single architectural works, but also ‘the urban and rural setting in which is found the evidence of a particular civilisation, a significant development or an historic event’.26 This recognised the complex relationship between the natural and cultural heritage, an important precursor to the development of the World Heritage Convention’s ultimate scope. At the beginning of the negotiating process in 1968, ‘monuments’ and ‘sites’ were already expressed as the object of the protective regime to be drafted. What exactly these were, however, was subject to considerable debate, with a range of terms, sub-categories and types being suggested, such as ‘historical monuments’,

25 The fourth recital refers to UNESCO’s mandate as reflected in article 1(c) of the Constitution of UNESCO, to: ‘[m]aintain, 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’. See Chapter 2. 26 1964 International Charter for the Conservation and Restoration of Monuments and Sites, article 1; which provides, in full: ‘[t]he concept of an historic monument embraces not only the single architectural work but also the urban or rural setting in which is found the evidence of a particular civilisation, a significant development or an historic event. This applies not only to great works of art but also to more modest works of the past which have acquired cultural significance with the passing of time’.

World Heritage Convention 231 ‘urban sites’, ‘archaeological sites and monuments’. ‘natural sites’, ‘mixed sites’, ‘scientific sites’, ‘prehistoric or protohistoric monuments or remains’, and ‘historic buildings’. At the same time, there was recognition that not all monuments and sites which fell into any of the suggested categories should be protected, but only those of ‘universal importance and interest’ from an aesthetic, picturesque, scientific or historical perspective.27 The introduction of ‘groups of buildings’ into the equation also brought with it the idea that ‘monuments, groups of buildings and sites’ were to be viewed as an integral whole, ‘each element being inseparable from the other’.28 This recognised the complexities in the relationship between the physical, man-made features, the environment and social contexts. This recognition, together with the decision to combine the initial UNESCO draft with that of the IUCN, thus including both cultural and natural heritage within the scope of the Convention, enabled the three inseparable elements of ‘monuments, groups of buildings and sites’ to be subsumed under the term ‘cultural heritage’ for the first time. The resulting definition is complex, involving four distinct components. The first component is the division of the cultural heritage into ‘monuments, groups of buildings and sites’. These are not categories as such since they constitute an integral whole – that of cultural heritage. This is reflected in the second component in which each element is given specific content, which, while overlapping also evince inconsistencies. For example, a monument includes ‘elements or structures of an archaeological nature’, while sites includes ‘archaeological sites’. At the same time the archaeological site might include ‘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’. On the other hand, a single building of architectural merit might be regarded as either or both a monument or site, but, given its singular nature, not a group of buildings. The third component requires that each monument, group of buildings or site reaches the threshold of being of ‘outstanding universal value’. The final component requires that this value or threshold be of a specific nature. Again some inconsistencies are evident, as the value of monuments and groups of buildings must be from the point of view of ‘history, art or science’ while that of sites must be of ‘historical, aesthetic, ethnological or anthropological’ importance. Whilst inconsistencies are evident across the three elements that make up the complex definition of cultural heritage, the definition does suffer from a number of further problems. It has, for example, been criticised as being too narrow in focus, inspired as it was by a European monumentalist vision of cultural heritage.29 Similarly, the requirement that sites be created by man to have cultural significance undervalues the cultural values that indigenous communities have with natural sites.30

27 28 29 30

UNESCO Doc. SCH/ CS/27/8, 31 December 1968. UNESCO Doc. SHC/CONF.43/4, July 1969. UNESCO Doc. WHC-2000/CONF.202/INF.13, 15 June 2000. L. Smith, The Use of Heritage, Abingdon: Routledge, 2006, p. 96.

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On the other hand, it has proved to be rather broad in many respects, allowing for the Committee to give it further focus through the Operational Guidelines. For example, the definition of sites as being the ‘combined works of nature and of man’ has been used to include and define ‘cultural landscapes’ for inclusion on the List.31 The definition is used, both by UNESCO, the Committee and States, as a broad concept such that rarely is reference made to any of its constituent elements (being monuments, groups of buildings, or sites), but rather simply to cultural heritage of properties. This reflects the fact that the three categories are ‘both the definitional and constitutive elements of cultural heritage’.32 In its broadest sense it simply applies to immovable cultural heritage, though this is not actually specified in the Convention, but in the Operational Guidelines, which declares that ‘[n]ominations of immovable heritage which are likely to become movable will not be considered’.33 Whilst still suffering from some limitations, the definition has proven to be pliable through the determination of the threshold that any cultural heritage is required to reach before it can be inscribed on the World Heritage List. Rather than the definition becoming the central focus of any nomination, it is the evaluative criteria of being of ‘outstanding universal value’ which has proven crucial to the drafting of the World Heritage List. Determining ‘outstanding universal value’ Key to defining the scope of the Convention and the cultural and natural heritage subject to the conventional regime is defining the term ‘outstanding universal value’, which acts as a qualifier to both cultural and natural heritage. The evaluative term sets the threshold, or level that needs to be achieved before any cultural or natural heritage can be considered ‘world heritage’. It plays a pivotal role in not only constructing the meaning of ‘world heritage’ but also in its actual manifestation in the form of the World Heritage List.34 Its origin lies in an attempt, early on in the process leading to the Convention’s adoption, to limit the scope of the Convention ‘only to such examples of [monuments, groups of building and sites] as merit designation by virtue of their exceptional aesthetic or natural interest or their great importance as unique evidence of vanished civilisations or as irreplaceable architectural masterpieces typifying a particular period, an historical past or the genius of a people, as monuments, groups of buildings and sites of universal interest’.35 It was from the latter phrase that the concept of ‘outstanding universal value’ evolved.36

31 For a detailed consideration of cultural landscapes, see B. von Droste, H. Plachter and M. Rössler, Cultural Landscapes of Universal Value, Stuttgart: Gustav Fisher, 1995. See also Whitby-Last, op. cit., p. 59. 32 A.A. Yusuf, ‘Definition of cultural heritage’ in Francioni, op. cit., p. 27. 33 Operational Guidelines 2008, para. 48. 34 Article 11(2). See Titchen, op. cit., p. 74. 35 UNESCO Doc. SH/MD/17, 30 June 1971. 36 This term first appeared in a US submission in 1972. Titchan, op. cit., p. 84.

World Heritage Convention 233 The term is not actually defined in the Convention. This is not surprising since the notion itself is elusive and fluid, changing over time and from differing cultural perspectives. Giving effect to the ordinary meaning of the words used in the term does go some way to delineating its scope.37 In this regard Francioni considers ‘outstanding’ to suggest something ‘unique, exceptional, excellent, or very special and anyhow much better than what is usual’.38 The latter also suggest that to determine whether something is outstanding requires at least a comparison to be made with other cultural or natural heritage of a similar type and an evaluation of which is outstanding amongst the sample. Whilst this may be possible given an appropriate sample, the determination of whether this ‘outstanding value’ is a ‘universal’ one is a great deal more difficult. This, it is argued, ‘can be understood as defining the quality of a site of being able to exercise a universal attraction for all humanity and exhibit importance for the present and future generations’.39 Giving effect to the ordinary meaning of the words, which are as value loaded as ‘outstanding’ and ‘universal’, does not provide very clear guidelines for the establishment of a World Heritage List. The Convention therefore vests the World Heritage Committee with the power to define the criteria by which the outstanding universal value of cultural heritage will be identified.40 It leaves the criteria to be used in making this judgement to the Committee itself. This the Committee has done through the development of the Operational Guidelines – and more specifically, the articulation in those Guidelines of the criteria for identifying the outstanding universal value of a cultural heritage site.41 Outstanding universal value as an evolving concept Because the criteria for establishing the outstanding universal value of the cultural heritage are found in the Operational Guidelines, and not in the Convention itself, they can be amended from time to time as the Committee considers appropriate.42 The criteria in the existing 2008 Guidelines are the sixth variation since the first Guidelines were drafted in 1977.43 This ability to modify and update the criteria for determining outstanding universal value ‘accommodates the mutability of the concept of heritage value or significance’.44 This has not only allowed changes in the perception of value, but also indirectly to address shortcomings in the actual definition of cultural heritage found in article 1 of the Convention.45

37 38 39 40 41 42

Article 31(1), Vienna Convention. Francioni, op. cit., p. 18. Ibid., p. 19. Article 11. Provision is also made for determining the significance of the natural heritage. See Francioni for a brief overview of the differing strategies adopted in the early 1970s, 1980s and 1990s. 43 The Operational Guidelines were initially issued in 1977, and new versions came into operation in 1978, 1980, 1984, 1987, 1988, 1992, 1994, 1996, 1997, 1999, 2005 and 2008. 44 Titchan op. cit., p. 99. 45 Yusuf, op. cit., p. 27.

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The criteria in the first edition of the Operational Guidelines in 1977 benefitted greatly from work undertaken by ICOMOS in drafting criteria in 1976 and by the United States delegation, which drafted a set of criteria to be used in selecting United States nominations of sites to be recommended for inclusion on the World Heritage List.46 These initiatives were consolidated into a working document which contained an important additional comment on the developing criteria. That is, that ‘[i]n addition to specific criteria for evaluating the inherent characteristics of a property, special attention must be given to the integrity of natural areas and to the authenticity of cultural property’.47 Whilst a number of relatively minor changes were made to the working document, the final version of the Operational Guidelines was adopted in late 1977. Almost immediately, and before any properties were actually listed, the criteria were the subject of further lengthy discussion and some further amendments made and the Operational Guidelines reissued in 1980.48 The Committee then embarked on considering nominations for inclusion on the World Heritage List. In the early years of the Committee’s deliberations, the focus quite naturally fell on listing iconic sites – those which were clearly unique – a one of a kind.49 It quickly became clear, however, that this approach had significant limitations. Only a small number of sites in a limited number of States would ever be listed. The notion of a world heritage was considered as not only reflected in those sites which were iconic and of world significance but a collective heritage which required representivity. This required the identification of heritage that represents ‘the totality and diversity of all cultures of the world in their intellectual, aesthetic, religious, and sociological expression’.50 This approach to world heritage caused further problems as not only was it difficult to determine which particular site might be the best representative of its type, but determining the types or classes of sites that should be included proved equally difficult. Representativeness was not restricted to the sites themselves, but to cultures, geographical units or ethnicity. As such, the notion of ‘outstanding universal value’ was seen as being underpinned by two fundamental elements: On the one hand, the ability of the property to exercise universal appeal by virtue of the exceptional qualities, including its authenticity, its resonance in terms of human experience, and its capacity to interpret in an exceptional manner one of the eternal themes of the human condition, such as the mystery of life, the struggle for survival, death and the search for beauty. On the other hand, the concept of universality must be linked to the capacity to

46 Titchan, op. cit., pp. 102–32. 47 UNESCO Doc. CC.77/CONF.001/4, 9 June 1977. 48 For a discussion of the changes made by the 1980 Operational guidelines, see Titchan, op. cit., pp. 132–6. 49 Cultural heritage such as the Galápagos Islands (1978), The Pyramids of Giza (1979), Grand Canyon (1979), Historic centre of Rome (1980), the Taj Mahal (1983) and the Acropolis (1987). 50 Francioni, op. cit., p. 20.

World Heritage Convention 235 represent the diversity of the cultures and traditions of the world, both in the space and time dimensions. It requires a careful selection of heritage sites, so as to provide a truthful and complete picture of the worlds of humanity in the great variety of their expressions.51 By the early 1990s this idea of representivity had not been achieved, and while some changes had been made to the criteria set out in the Operational Guidelines in 1980, a number of inadequacies were still noted. First, the List still reflected a monumentalist approach, with the result that historic towns and religious buildings were over-represented, and particularly those of Europe. Second, Christianity was over-represented in comparison with other religions as were historical periods rather than prehistory. It was also the case that the List reflected civilisations which had disappeared, and little on the List reflected living traditions.52 At around the same time, the Nara Document on Authenticity was drafted, introducing a wider and more culturally sensitive approach to attributing values to cultural heritage.53 To address the need to revise the criteria in the Operational Guidelines, and to produce a balanced, representative and credible List, the Committee adopted a ‘Global Strategy’. The adoption of the Global strategy led to a further broadening of the notion of cultural heritage and attempts to address the imbalances evident in the List as it then stood. Importantly, rather than considering sites which were merely monumental in nature, a more holistic, culturally sensitive view was taken of possible inclusion on the List. As the Expert Group that recommended the adoption of the Global Strategy explained: The history of art and architecture, archaeology, anthropology, and ethnology no longer concentrated on single monuments in isolation but rather on considering cultural groupings that were complex and multidimensional, which demonstrated in spatial terms the social structures, ways of life, beliefs, systems of knowledge, and representations of different past and present cultures in the entire world. As such, it was considered that the List should be more receptive to the different cultural manifestations of outstanding universal value. To address the imbalances perceived in the List, broad themes that promised potential for new listing were developed. These themes were avenues of investigation from which representative properties might emerge from a greater variety of cultures and States than existed on the List. The themes included: human co-existence with the land, such as settlement, modes of subsistence or movement of peoples; and human beings in

51 Ibid., p. 21. 52 UNESCO Doc. WHC-94/CONF.003/INF.6, 13 October 1994. 53 Operational Guidelines 2008, Annex 4.

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society, such as cultural co-existence, and spiritual and creative expression.54 From this emerged new conceptions of what constituted outstanding universal value, and in what it might reside. So, for example, the concept of ‘cultural landscapes’ emerged as a component of the cultural heritage as defined in the Convention, and which reflected the recognition of an evolving conception of what constituted outstanding universal value.55 The adoption of the Global Strategy, and the revision of the 1994 Operational Guidelines, was a significant shift in approach to determining the outstanding universal value of cultural heritage and the resulting make-up of the List. Essentially, it resulted in a shift ‘from the iconic, “wonders of the world” approach towards a more representative and comparative “selection of the best” approach in the establishment of the List’56 as well as in the way in which the definition of cultural heritage in the Convention was to be viewed and interpreted. Guided by the need to establish a representative, balanced and credible World Heritage List in conformity with the Strategic Objectives of the Committee, the Operational Guidelines and its criteria for identifying the outstanding universal value in cultural heritage have constantly evolved. The 2008 Operational Guidelines’ criteria for outstanding universal value Whilst not amounting to a definition as such, the Operational Guidelines do explain that, ‘[o]utstanding universal value means 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’.57 The Operational Guidelines further provide that the Committee will consider a property as having outstanding universal value if it meets one or more of the following criteria: i represent a masterpiece of human creative genius; ii exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-planning or landscape design; iii bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared;

54 Yusuf, op. cit., p. 36. 55 K. Taylor and K. Altenburg, ‘Cultural Landscapes in Asia-Pacific: Potential for Filing World Heritage Gaps’ (2006) 12 International Journal of Heritage Studies 267; G. Aplin, ‘World Heritage Cultural Landscapes (2007) 13 International Journal of Heritage Studies 427; N. Akagawa and T. Sirisrisak, ‘Cultural Landscapes in Asia and the Pacific: Implications of the World Heritage Convention’ (2008) 14 International Journal of Heritage Studies 176. 56 Yusuf, op. cit., p. 37. 57 Operational Guidelines 2008, para. 49.

World Heritage Convention 237 iv be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history; v be an outstanding example of a traditional human settlement, land-use, or sea-use which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change; vi be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. (The Committee considers that this criterion should preferably be used in conjunction with other criteria).58 While the recognition that the value is from the point of view of history, art, science or from an aesthetic, ethnological or anthropological perspective in case of sites is embedded within these criteria, a value judgement is still required to give meaning to these criteria. The legal meaning of outstanding universal value Whilst cultural heritage is defined, in legal terms, in article 1 of the Convention, this definition has had very little to do with the establishment of the List and the emerging notion of a ‘world’ heritage. For example, the inclusion of definitions for heritage canals and heritage routes, contained in the Operational Guidelines, do not refer specifically to any aspect of the definition of cultural heritage in article 1.59 The driving force behind the activities of the Committee and States Parties has been the evolution of the criteria for establishing the outstanding universal found in the Operational Guidelines. Yusuf explains that while the definitional elements of ‘cultural heritage’ specified in Article 1 of the Convention may constitute the basic building blocks, the glue that holds everything together and determines, in the final analysis, whether a property is considered as part of ‘cultural heritage’ in the 1972 Convention is its possession of outstanding universal value.60 Importantly, however, these criteria were, at least in their original intent, to be used as guidelines for giving effect to the spirit of the Convention. As guidelines, they were to be used with a certain amount of discretion by the Committee in its deliberations. The ability to amend these guidelines has allowed for the Committee to address changing values and thereby reinterpret the definition of article 1.

58 Operational Guidelines 2008, para. 77. 59 Operational Guidelines 2008, para. 47 and Annex 3, Guidelines on the Inscription of Specific Types of Properties on the World Heritage List. 60 Yusuf, op. cit., p. 50.

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At the same time, however, the criteria have morphed into something more like a rule than a guideline.61 The standard form for the Submission of a Tentative List requires the submitting State to actually tick off one of the applicable criteria. Without specifically addressing at least one of the criteria, the submission would, at least formally, be inconsistent with the standard form’s requirements. Crucially, the actual nomination form itself requires that at least one of the criteria for outstanding universal value set out in the Operational Guidelines be specifically addressed. Without doing so, the nomination is considered ‘incomplete’.62 As such, the criteria form an integral, indispensible, part of the nomination process. Furthermore, upon the inscription of the property on the World Heritage List, a Statement of Outstanding Universal Value, which reflects the criteria used in the nomination process, is made by the Committee, and which becomes the ‘key reference for the future protection and management of the property’.63 The use of the criteria in the Operational Guidelines as akin to a rule, rather than a guideline, is problematic. The definition in article 1 requires the determination that a property has outstanding universal value from the point of view of art, science, history, anthropology, archaeology and aesthetics. However, the guidelines, which are supposed to assist in this assessment, use a range of indistinct and opaque terms to qualify these values, such as ‘unique’, ‘masterpiece’, ‘exceptional’, ‘outstanding’ and ‘significance’.64 These are difficult to implement as criteria in the form of rules. They are inherently subjective and, as value judgements, are susceptible to a range of meanings. This leaves the interpretation and implementation of the criteria as something which must be addressed, almost as a rule, but without any specific content given the subjective nature of the evaluative process undertaken. Authenticity and integrity Not only must cultural heritage as defined in article 1 of the Convention be of outstanding universal value before it is eligible for inscription on the World Heritage List, but it must also meet the requirements of authenticity and integrity.65 Integrity, as it relates to cultural heritage requires that: the physical fabric of the property and/or its significant features should be in good condition, and the impact of deterioration processes controlled. A significant proportion of the elements necessary to convey the totality of the value conveyed by the property should be included. Relationships and dynamic

61 62 63 64 65

Titchan, op. cit., p. 127. Operational Guidelines 2008, para. 132, and Annex 5 part 3.a. Operational Guidelines 2008, para. 51. Titchan, op. cit., p. 140. Operational Guidelines 2008, para. 78.

World Heritage Convention 239 functions present in cultural landscapes, historic towns or other living properties essential to their distinctive character should be maintained.66 The requirement of integrity is generally of greater importance for natural heritage sites, but may be relevant for cultural heritage.67 The test for authenticity, however, is of great importance to determining the outstanding universal value of the cultural heritage. ‘Authenticity’ requires that the values of a particular cultural heritage site be reliable or trustworthy – that the cultural heritage which may be added to the World Heritage List actually embodies the values ascribed to it. In its most concrete form the Operational Guidelines require that ‘the reconstruction of archaeological sites or historic buildings or districts is justifiable only in exceptional circumstances. Reconstruction is acceptable only on the basis of complete and detailed documentation and to no extent on conjecture’.68 For example, many Chinese and Asian cultural sites are made of wood, requiring constant replacement.69 Indeed, the World Heritage listed Summer Palace was completely rebuilt after its destruction in 1860. While authenticity is concerned, in some cases, with the genuineness of the physical characteristics of the cultural heritage, it is more often concerned with the reliability, or authenticity, of the sources of information by which value or significance is attributed to the cultural heritage. Sources include all physical, written, oral and figurative sources which make it possible to know the nature, meaning and history of the cultural heritage.70 How value is attributed, however, differs from culture to culture. The Committee recognised, for example, that the scientific ‘Western’ test that relies on hard facts and approved methodologies to determine authenticity and attribute a value differs to, for example, the African approach which embodies value according to the spirit of a cultural heritage property rather than merely its physical condition. As such, the Operational Guidelines require that ‘cultural heritage must be considered and judged primarily within the cultural context to which it belongs’, and that the cultural values are truthfully and credibly expressed through a variety of attributes, including: form and design, use and function, traditions, techniques, spirit and feeling, and language and other forms of intangible heritage.’71 Recognition is therefore given to the fact that: Cultural heritage diversity exists in time and space, and demands respect for other cultures and all aspects of their belief systems. In cases where cultural

66 Operational Guidelines 2008, para. 89. 67 The World Heritage Committee is working on drafting examples of the application of the conditions of integrity to cultural heritage. Operational Guidelines 2008, para. 89. 68 Operational Guidelines 2008, para. 86. 69 S. Gruber, ‘Protecting China’s Cultural Heritage Sites in Times of Rapid Change: Current Developments, Practice and Law’ (2007) 10 Asia Pacific Journal of Environmental Law 253, 262. 70 Operational Guidelines 2008, para. 84. 71 Operational Guidelines 2008, paras 81–2.

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The protection and management regime Should a cultural heritage property prove to be of outstanding universal value, and the requirements of authenticity and integrity fulfilled, adequate protective and management systems also need to be in place to ensure that the outstanding universal value of that heritage is maintained.73 The Operational Guidelines indicate that all properties must ‘have adequate long-term legislative, regulatory, institutional and/or traditional protection and managements to ensure their safeguarding. This protection should include adequately delineating boundaries’.74 As an essential element in the regime to protect the outstanding universal value of a cultural heritage site, the boundaries are required to be drawn in a way that ensures ‘the full expression of the outstanding universal value and the integrity and/or authenticity’ of that heritage.75 Furthermore, the boundaries should be drawn not only to include those areas which are ‘a direct tangible expression of the outstanding universal value of the property’, but also ‘those areas which in the light of future research possibilities offer potential to contribute to and enhance such understanding’.76 The Operational Guidelines further provide for the use of buffer zones, which, though falling outside the delineated site, is an area surrounding the site which gives it an added layer of protection. The buffer zones would usually have similar legal and administrative regimes as the delineated site.77 Buffer zones may be used to protect the cultural heritage in a number of ways, such as to prevent development too close to a site and which would cause damage to the site, or could even threaten the visual integrity of the site.78 Defining the natural heritage One of the distinctive features of the World Heritage Convention is that it is concerned with the protection of both cultural and natural heritage. No other

72 73 74 75 76

Operational Guidelines 2008, Annex 4: Nara Document on Authenticity, para. 6. Operational Guidelines 2008, para. 96. Operational Guidelines 2008, para. 97. Operational Guidelines 2008, para. 99. Operational Guidelines 2008, para. 100. It does not, however, include areas associated with an intangible aspect of that cultural heritage. See Chapter 7. 77 Operational Guidelines 2008, para. 104. 78 The Cologne Cathedral in Germany was added to the World Heritage in Danger List because modern building development in close proximity threatened the visual integrity of the Cathedral. The listing of the Kathmandu Valley in Nepal was listed for similar reasons. See also the 2005 United Nations Declaration on the Conservation of Historic Urban Landscapes. See B. Boer, ‘Identification and delineation of world heritage properties’ in Francioni, op. cit., p. 96.

World Heritage Convention 241 international convention does so to the same extent. At the same time, the two notions are still treated quite differently in the Convention, with the definition of natural heritage appearing in a separate definitional article to that of cultural heritage.79 What unites both notions is that they are required to be of outstanding universal value to qualify as world heritage. The attempt to recognise that humankind and the environment are essentially inseparable has not been wholly successful in terms of the Convention’s structure. Not only are the two notions defined separately, but until 2003, the criteria for determining the outstanding universal value of the properties were also separated in the Operational Guidelines. Whilst they now are found in the same list, they are not truly integrated, with criteria (i)–(vi) concerning cultural heritage and (vii)–(x) dealing with natural heritage. Whilst a given heritage property may exhibit both cultural and natural heritage features, and therefore be considered a ‘mixed’ property, the two notions are still separated. Where there is a more discernible interaction between humankind and the environment, such as the case of cultural landscapes, these have essentially been dealt with as cultural heritage, falling within the article 1 definition of a ‘site’ as ‘the combined works of nature and of man’.80

National protection of cultural heritage The protection of cultural property rests in the hands of the State in which it is found. Not only is this a practical reality, but recognised in the Convention as the legal foundation upon which the conventional protection regime rests. Article 4 provides: Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. The fact that each State is sovereign and exercises exclusive sovereign rights over all cultural and natural heritage found within the territory of the State, is not only recognised, but relied upon as a cornerstone of the conventional protection regime.81 This is reiterated in article 6, which, while introducing the notion that the cultural heritage found in one State’s territory may be of importance to all States and constitute ‘world heritage’, does so by setting it in the context of the primacy of the territorial States. Article 6 provides that certain ‘heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate’, but that this is achieved whilst

79 Article 2. See C. Redgwell, Definition of natural heritage’ in Francioni, op. cit., pp. 63–84. 80 For an analysis of the problems this may cause see S.I. Dailoo and F. Pannekoek, ‘Nature and Culture: A New World Heritage Context’ (2008) 15 International Journal of Cultural Property 25. 81 J. Simmonds, ‘UNESCO World Heritage Convention’ (1997) 2 Art Antiquity and Law 253.

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‘fully respecting the sovereignty of the States on whose territory’ the cultural heritage is situated. Whilst the territorial State’s sovereignty is fully respected, article 4 does provide that a State Party to the Convention is bound to recognise that it has a duty to ensure the protection of the world heritage.82 Curiously, the article does not simply impose this duty, but is worded in a manner which suggests that this duty pre-existed the conventional obligation, and that the obligation is recognition of this duty rather than the imposition of that duty for the first time. Nevertheless, a duty exists. The first step in addressing the duty established in article 4 is for the State Party to identify the heritage within its territory which meets the definition of article 1. This duty is reiterated in article 3 of the Convention, which provides that it ‘is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above’. Each State Party thus has a duty to determine what properties fall within the definition in article 1; that is whether it is a monument, group of buildings or site of outstanding universal value. This duty naturally pre-exists the possible listing of that particular property on the World Heritage List, and as such, is not confined only to listed properties. It is thus for each State to determine what properties fall within the definition of article 1. The criteria set out in the Operational Guidelines are not applicable since these are guidelines for the use of the Committee in its deliberations, though States are free to use them should they wish to do so.83 The territorial State, then, is free to use any criteria it thinks appropriate, including considering the social, political and economic implications of listing, such as the effect it will have on private property rights. As such, the heritage subject to the duty of a State under chapter II is not necessarily the same heritage that is subject to the State’s duties in other chapters of the Convention which are limited to those on the List. That said, while the duty in chapter II is quite separate and autonomous from that established in the other chapters, the conventional regime is designed with the List as a core component, and as such, the duties of the State Party in chapter II are to reflect this. Whilst a duty, it is difficult to determine to what extent a State Party has fulfilled this duty as the ability of a State Party to identify those properties that fall within the definition of article 1 will depend on a range of factors, including

82 Article 26 reiterates this duty by making it clear that, even when international assistance has been granted for the protection of a specific cultural property, ‘[i]t shall be the responsibility of the State receiving such international assistance to continue to protect, conserve and present the property so safeguarded’. 83 In the Australian case Richardson v. Forestry Commission of Tasmania (1988) 164 CLR 261, the court found that the duty imposed by article 3 to identify and delineate the heritage mentioned in article 1 fell exclusively on the territorial State, and not on any international or other body. See further B. Boer and G. Wiffen, Heritage Law in Australia, Melbourne: Oxford University Press, 2006, p. 72. See also M. Peek and S. Reye, ‘Judicial Interpretation of the World Heritage Convention in the Australian Courts’ in B. Hoffman, Art and Cultural Heritage: Law Policy and Practice, New York: Cambridge University Press, 2006, pp. 206–9.

World Heritage Convention 243 the financial and administrative capabilities of the State, its geographical size, and the date it became party to the Convention. While States are free to protect heritage in their territory using criteria of their own making, this is distinct from the duty to protect heritage as defined in article 1 and that which might be added to the List. Similarly, if a State determines that a particular property does fall within the definition provided for in article 1, but the property is subsequently not added to the List, this does not in any way affect the duty imposed on the State under article 4.84 The State still has the duty to protect, conserve, present and transmit that cultural heritage to future generations.85 Article 4 does not, however, give content to this duty, or individual duties.86 This is because the content of these duties will need to differ from State to State, given the differing social, cultural and economic realities in different States.87 The second sentence of article 4 recognises these difficulties, and provides, in relation to fulfilling these duties, that each State Party ‘will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain’. This international assistance is that provided for in chapter V of the Convention. Sympathetic to the differing social, cultural and economic conditions in different States, article 4 does not give any content to the duties imposed, but article 5 of the Convention does provide a tentative outline of a number of measures which, if implemented, will enhance the protection of the cultural heritage in each State. Each State Party is encouraged: a to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; b to set up within its territories, where such services do not exist, one or more services for the protection, conservation, and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; c to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage;

84 For this reason, the Australia Federal Government, reluctant to have to fulfil any duties other than to those properties actually inscribed on the World Heritage List, refused to draw up any list of properties other than one which listed a limited number of properties that would be nominated for inscription on the World Heritage List. Boer and Wiffen, op. cit., p. 72. 85 See further discussion on article 12 below. 86 The content of the duties set out in article 4 were considered in the Australian context by the Australian High Court in Richardson v. Forestry Commission of Tasmania (1988) 164 CLR 261. 87 See Boer and Wiffen, op. cit., pp. 71–83 for a discussion of the possible content of each of the duties of identification, protection, conservation, presentation and transmission to future generations, in the Australian context.

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Each State Party is not required to actually implement these measures, only to ‘endeavour’ to do so and only ‘in so far as possible’. The attempts of any States to implement these measures is therefore to be considered in light of that particular State’s reality, recognised by the qualifying phrase ‘as appropriate for each country’. Nevertheless, within these constraints, a duty still exists to endeavour to give content to the listed matters in article 5.88 Article 4 has been described as ‘abstract and indefinite’, and incapable of being ‘translated into specific requirements’.89 Nevertheless it is important and central to the protective regime established in the Convention not because of the content of the duties imposed on States Parties, but because they are imposed on the State in whose territory the cultural heritage is found.90 As such, in practice, ‘it simply entails a commitment to not act in ways which are manifestly at odds with the purposes of the Convention’.91 Superimposed on this primary obligation of each State to protect the cultural heritage in its territory is the attempt to structure an international regime to assist that State in the protection of that cultural heritage. At the same time as the General Conference of UNESCO adopted the World Heritage Convention, it wished to encourage the protection of cultural heritage which might not be of outstanding universal value, but had some ‘special value’ for the territorial State. It did so by adopting the Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage. The objective of the recommendation was essentially to establish a common approach to the protection of national heritage amongst member States of UNESCO.

International protection of cultural heritage Apart from imposing a duty on States Parties to provide for the national protection of cultural property, chapter II envisages roles for other States as well as the international community. Article 6(1) provides that ‘the States Parties to this Convention recognize that such heritage [as defined in chapter I] constitutes a

88 The nature of this duty was affirmed by the High Court of Australia in Commonwealth v. Tasmania (1983) 158 CLR 1. 89 F. Lenzerini, ‘Protection of Properties not Inscribed on the World Heritage List’ in Francioni, op. cit., pp. 206–7. 90 Carducci, op. cit., p. 114. 91 Lenzirini, op. cit., p. 207.

World Heritage Convention 245 world heritage for whose protection it is the duty of the international community as a whole to co-operate’. The ‘international community’ here is, in terms of international law, restricted to the collective States Parties to the Convention.92 Since, however, this now numbers 186 States, it is almost the international community in its widest sense. The structuring of the co-operative mechanism in the Convention ‘in effect is to give a commitment to solidarity that is at the heart of the notion of world heritage’.93 The co-operation is thus at the core of the duty. It is reflected in article 6(2) which explains that States Parties undertake ‘to give their help in the identification, protection, conservation and presentation’ of the cultural heritage on the List and List of World Heritage in Danger ‘if the States on whose territory it is situated so request’. This assistance is most directly given through the mechanism established by the Convention, such as the Fund (chapter IV) and the system for international assistance (chapter V). Nevertheless, the content of this obligation is rather modest, with no specific level of help, or indeed the nature of that help, actually articulated. As such, it merely attempts, like article 5, to suggest the possible nature, or content, of the duty to co-operate. It has no real normative content other than to reflect the duty to co-operate. That duty to co-operate is nevertheless at the heart of the convention, and indeed, defines the very nature of ‘protection’ in the Convention. Article 7 articulates this as follows: For the purpose of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage. To the extent that other chapters in the Convention specifically address these co-operative measures, this article merely acts as an introduction to the scheme. It does, however, further emphasise that ultimately the protection of cultural heritage lies with the State in which that heritage is to be found, and that in international terms, ‘protection’ is to be understood as the co-operative effort to assist that State in protecting that heritage on behalf of mankind. Deliberate actions of a State that damages the World Heritage Whilst chapter II set out to introduce the duties of States Parties to co-operate to protect the world cultural heritage, article 6(3) introduces a duty of a different nature. It requires that ‘[e]ach State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cul-

92 Cadrucci, op. cit., p. 125. 93 J. Musitelli, ‘World Heritage, Between Universalism and Globalization’ (2002) (11) International Journal of Cultural Property 323, 326.

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tural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention’. Whilst couched in negative terms, requiring a State Party to refrain from acting in certain ways, indirectly it may require a State Party to act in order to prevent certain action emanating from its territory from damaging the world cultural heritage situated outside its borders. The international principles of state responsibility mean that not all actions emanating from a State will be attributed to the State itself, and thus a breach of article 6(3). But those that fall within the State’s functions and powers will require the State to take steps to ensure that no deliberate direct or indirect damage is caused to the cultural heritage in another State. For example, the five world heritage sites (all national parks) in the Democratic Republic of the Congo are threatened by poaching activities, many emanating from across its borders.94 In 2005, the Committee requested, in accordance with article 6(3) the co-operation of Sudan in preventing ‘transborder poaching activities and that no action will be taken that threatens the value or integrity of a property located on the territory of another State Party to the Convention’.95 Property rights and national legislation Whilst requiring States Parties to recognise that certain cultural heritage in their territory constitutes world heritage, to be protected by the co-operative effort of the international community, article 6(1) not only endorses the primacy of the State Party in whose territory that heritage is to be found, but makes specific mention of that State’s property rights as recognised by that State’s laws. Any recognition of a particular cultural heritage site as being world heritage is ‘without prejudice to property rights provided by national legislation’. In a sense this inclusion is somewhat unnecessary. Article 4 of the Convention, in requiring States to recognise their duty to provide protection of world cultural heritage situated within its territory, has left the mechanism, and the content of that duty, to each particular State. This includes the property law in that State. As such, a range of property law issues fall within the remit of the territorial State, including who can own cultural heritage, how ownership is transferred, whether ownership can be obtained by adverse possession and how ownership might be lost. This also includes national legislation particular to cultural heritage, which, at least from the viewpoint of the conventional regime, is solely a national matter and somewhat irrelevant to the international regime.96

94 The World Heritage sites in the Democratic Republic of the Congo consist of Garamba National Park, Kahuzi-Biega National Park, Okapi Wildlife Reserve, Salonga National Park and Virunga National Park. See P. Bonneville, The World Heritage: UNESCO’s Classified Sites, Quebec: Bonneville Connection, 2006, pp. 344–6. 95 WHC 27 COM 7A.2, 2003. See Carducci, op. cit., pp. 126–7. 96 Caducci, op. cit., p. 108.

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The World Heritage Committee Formally called the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, the Committee, in its widest sense, represents ‘the common interests of States Parties in the world heritage’.97 In a more practical vein, it can be seen ‘as the executive body of the institutional framework established by the Convention’.98 Nevertheless, composed as it is by representatives of States Parties, it is essentially a political body, hostage to the inevitable international political forces at play at any given time. The Committee is composed of 21 member States that ought to equitably represent the different regions and cultures of the world.99 With 186 States Parties to the Convention, it is doubtful whether a Committee of 21 members can actually reflect such a wide interest. The composition of the Committee has long been a contentious issue, and elections are politically charged events. Proposals to increase the Committee to 36 failed as this could have required formally amending the Convention.100 A larger Committee, however, might prove to be cumbersome and bureaucratic, and in a structure which is so heavily reliant on the exercise of State sovereignty, no change has been made.101 The actual election of the member States takes place in the General Assembly of UNESCO during the (bi-annual) ordinary session of its General Conference.102 The term of office of States members of the World Heritage Committee extends from the end of the ordinary session of the General Conference during which they are elected until the end of its third subsequent ordinary session.103 Initiated by a shorter term for members of the first committee,104 one-third of the members of the Committee are elected at each session, the other two-thirds providing continuity in the Committee membership. Whilst this means that the term of office for each member is six years, the General Assembly may invite some members to voluntarily reduce their membership to four years in order to allow for a faster rotation that allows for more equitable membership.105 Furthermore, the Committee itself may reserve a number of seats for States Parties who do not have

97 T. Scovazzi, ‘World Heritage Committee and World Heritage List’ in Francioni, op. cit., p. 149. 98 A.F. Vrdoljak, ‘World Heritage Committee and International Assistance’ in Francioni, op. cit., p. 221. 99 Article 8(2). For the purposes of equitable membership, five regional groupings are used: Africa; Arab States; Asia and the Pacific; Europe and North America; Latin America and the Caribbean. 100 For a detailed discussion of these initiatives, see Strasser, op. cit., pp. 239–45. 101 Simmonds, op. cit., p. 255. 102 Article 8(1). 103 Article 9(1). 104 Article 9(2). 105 Operational Guidelines 2008, para. 21.

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a property on the World Heritage List to be filled at the next General Assembly election.106 In 2007, one seat was reserved for such a State.107 At the end of each ordinary session of the Committee, a Bureau108 is chosen from the continuing membership whose function it is to co-ordinate the work and timing of the committee. Article 10 provides the Committee with considerable discretion in determining its Rules of Procedure for its meeting and who may attend the meetings. The Committee meets at least once a year.109 The actual members of the Committee are appointed by the States chosen for membership. Nevertheless, the Convention does specify that the State members shall choose as their representatives persons qualified in the field of the cultural or natural heritage.110 This may be difficult for smaller developing States. It is, however, an attempt to ensure that the Committee is not dominated by diplomats and politicians. However, it is ‘difficult, if not practically impossible, for a State Party to challenge’ another State Party’s decision on who its representatives will be.111 The Committee fulfils a range of functions. In 2002, to direct the overall function of the Committee and the conventional systems itself, the Committee adopted the ‘Budapest Declaration on World Heritage’ which introduced four strategic objectives to guide its activities: 1 2 3 4

Strengthen the credibility of the World Heritage List; Ensure the effective Conservation of World Heritage Properties; Promote the development of effective capacity building in States Parties; and Increase public awareness, involvement and support for World Heritage through Communication.112

In 2007, a fifth Strategic objective was added, to ‘enhance the role of Communities in the implementation of the World Heritage Convention’. The strategic objectives guide the main functions of the Committee, which are set out in the Convention, and given further content in the Operational Guidelines. At its core, however, is the construction of the World Heritage List.113

The World Heritage List Article 3 declares that ‘[i]t is for each State Party to this Convention to identify and delineate the different properties situated on its territory’ mentioned in article 1.

106 107 108 109 110 111 112

Operational Guidelines 2008, para. 22. Scovazzi, op. cit., p. 151. Which consist of a Chairperson, a Vice-chairperson and a Rapporteur. Operational Guidelines 2008, para. 19. Article 9(3). Socazzi, op. cit., p. 155. See also article 27, which requires States Parties to strengthen the appreciation for world heritage, particularly through the use of educational and information programmes. 113 Article 11 and Operational Guidelines 2008, Chapter I.E, particularly para. 24.

World Heritage Convention 249 Whilst this recognises the primacy of the territorial State, article 4 makes it clear that the territorial State has a duty to indentify this cultural heritage with its outstanding universal value. The inscription of property on the World Heritage List is therefore declaratory, and not part of a constitutive process, since the outstanding universal value of the cultural heritage is a precondition for, and not the result of, the inscription.114 This process of identifying the relevant cultural heritage is not, however, necessarily a straightforward one, and is often fraught with difficulties of a social, political, cultural and economic nature.115 The identification of cultural heritage that satisfies the definition in article 1, including having outstanding universal value, is not only the first step in the process to ultimate listing on the World Heritage List, but also gives rise to a need to set in place management and protective processes. Thus, before the property is even considered as a possible nomination for inclusion on the World Heritage List, and irrespective of whether it is then successful in being added to the List, any activity that has the effect of detracting or diminishing the outstanding universal value of the cultural heritage will be ‘regarded as contrary to the letter and spirit of the Convention’.116 The process of nominating sites identified as having outstanding universal value for inclusion on the List falls within the remit of the territorial State. The Convention clearly provides that ‘[t]he inclusion of a property in the World Heritage List requires the consent of the State concerned’ – that is the State in whose territory the cultural heritage is situated. This may give rise to some difficulties, particularly where world heritage is situated in territory claimed by more than one State. To encourage participation, the Convention provides that ‘[t]he inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute’.117 Thus, either State to the dispute, though preferably both States jointly, can nominate the property. This occurred in 1981 when Jordan nominated the Old City of Jerusalem, which was under the administration of Israel. The latter was not a party to the Convention at the time.118 Furthermore, the Convention provides for the nomination of properties that are transboundary. In such a case, where it is more likely to be natural sites rather than cultural heritage sites, the nomination ought to be submitted jointly by the relevant States Parties.119 Naturally such co-operation is not always possible, and

114 Lenzirini, op. cit., p. 215. 115 See for example the disputes between the Federal Government of Australia and the state of Tasmania’s forestry commission concerning the nomination of the Lemonthyme and Southern Forest, and the resulting litigation in Richardson v. Forestry Commission 164 CLR 261 (1988). 116 Boer, op. cit., p. 89. 117 Article 11(3). 118 See further Scovazzi, op. cit., p. 173. 119 Operational Guidelines 2008, para. 135. For example, the Struve Geodetic Arc is shared between ten States: Belarus, Estonia, Finland, Latvia, Lithuania, Moldavia, Russian Federation, Sweden, Ukraine and Norway. See listing under Finland in Bonneville, op. cit., p. 177. Bi-lateral transboundary sites include the Mosi-oa-Tunya/Victoria Falls World Heritage site managed by

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as such, some sites which are transboundary by nature have either been artificially divided up by only that proportion in one State being placed on the List, or, if the division means that no outstanding universal value exists in the one partition, no listing at all.120 This is an inevitable problem with a regime that relies upon the territorial sovereignty of the territorial States as its sole power to nominate sites within its territory. This requirement that the property be within the territorial jurisdiction of the nominating State has raised a problem with regard to cultural heritage beyond any State’s territorial competence, such as the high seas and the moon.121 While the latter has not raised any serious debate, the former is particularly important given the importance of the health of the oceans to the world’s climate and fisheries. Provision is also made for the nomination of ‘serial’ sites, which are sites that are made up of component parts related because they belong to the same historiccultural group, have characteristics of the same type of geographical zone or have the same geological, geomorphological formation, the same biogeographic province or the same ecosystem type. Each component need not have outstanding universal value, but the whole does.122 The Tentative List This identification and delineation of the cultural heritage is an essential part of the process of developing the World Heritage List, and each State Party is required, by article 11(1), to submit to the Committee ‘an inventory’ of property situated in its territory which is suitable for inclusion of the List. This is not an actual nomination for inclusion of any property on the List, but rather, in terms used in the Operational Guidelines, a ‘Tentative List’ of possible nominations in the future.123 Since the list is tentative, it is not considered exhaustive, and may be amended at any time. Indeed, the Operational Guidelines encourage States to re-examine their Tentative Lists, including considering the ‘harmonization’ of their list with other States’ Tentative Lists and the World Heritage List on a regional or thematic

120

121 122

123

Zambia and Zimbabwe, the Jesuit Missions of Guaranis shared by Argentina and Brazil, Mount Nimba Strict Nature reserve shared by Côte d’Ivoire and Guinea and the Waterton Glacier International Peace Park shared by Canada and the United States. Bonneville, op. cit., pp. 11, 72 and 347. For example, the listing of the Los Glaciares National Park by Argentina in 1981 caused tension between it and Chile since the natural effect of the site extended into Chile. The Thai listed site of Thungyai–Huai Kha Khaeng Wildlife Sanctuary actually extends into Myanmar, but a joint listing and co-operative regime has yet to be established. Simmonds, op. cit., pp. 257–8. Scovazzi, op. cit., p. 160. Operational Guidelines 2008, paras 137–9. For example, the Mexican World Heritage site of the Mar de Cortés (Islands and Protected Areas of the Gulf of California) consists of 244 islands, islets and coastal areas in which all major oceanographic processes occur. Bonneville, op. cit., p. 35. Operational Guidelines 2008, Chapter II.C.

World Heritage Convention 251 basis, and to re-submit it at least every ten years.124 This is particularly so since the duty to submit the Tentative List takes into account the financial and logistical difficulties many States might have, and is tempered by the condition that this duty be fulfilled only, ‘in so far as possible’ for each State.125 As such, the obligation to draw up and submit a Tentative List is not strictly mandatory.126 The Operational Guidelines encourage States Parties to prepare their Tentative Lists with the ‘participation of a wide variety of stakeholders, including site managers, local and regional governments, local communities, [non-governmental organisations] and other interested parties and partners’.127 Unfortunately, it is often within this context that disagreement occurs, preventing some heritage from being added to the Tentative List.128 Whilst it is not clear whether a State which does identify property that ought to be added to the Tentative List actually has a duty to include it in the list, ‘not identifying the property and placing it on the Tentative List could be seen as contrary to the aims of the Convention’.129 The World Heritage List is compiled on the basis of the submitted Tentative Lists, and States are encouraged to submit any potential nomination as part of their Tentative List at least a year before any actual nomination.130 Cultural heritage on the Tentative List must be accompanied by ‘documentation about the location of the property in question and its significance’.131 A standard form for submission of a Tentative List is provided in the Annex to the Operational Guidelines, and requires information about the geographical location, description, and outstanding universal value of the property. Importantly, the specific criteria set out in the Operational Guidelines must be addressed, and, for cultural heritage, at least one of the six criteria must specifically be acknowledged as applying to the specific cultural heritage. This allows the Committee, as well as other interested parties or bodies, such as ICOMOS, to use the tentative lists as a ‘planning and evaluation tool’, particularly in considering cultural heritage that might fill any perceived gaps in the World Heritage List.132 Once a property is included in a State’s Tentative List, it is, by definition, cultural heritage of outstanding universal value, irrespective of whether it is eventually added to the World Heritage List or not. The obligations

124 125 126 127 128

129 130 131 132

Operational Guidelines 2008, paras 65 and 73. Article 11(1). Socazzi, op. cit., p. 158. Operational Guidelines 2008, para. 64. Sydney Opera House, for example, was initially not inscribed on the List when nominated. Some sites have been extended after the initial nomination, or listing, following resolution of some of these types of issues. These include the Central Eastern Rainforest reserve in Australia, the Cocos Islands National Park in Costa Rica, the Central Amazon Conservation Complex in Brazil and the Galapagos Marine Sanctuary in Ecuador. See Boer, op. cit., p. 100. Ibid., p. 92. Operational Guidelines 2008, paras 63 and 65. Article 11(1). Operational Guidelines 2008, paras 70–73.

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set out in articles 4 and 5 of the Convention are therefore binding on the State in relation to that heritage. Nomination and listing of cultural heritage on the World Heritage List Central to the conventional regime is the requirement that the World Heritage Committee: establish, keep up to date and publish, under the title of World Heritage List, a list of properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years.133 The World Heritage List is established on the basis of the Tentative Lists submitted by States Parties. In considering the Tentative List submitted by States, the Committee is required to take into account the Global Strategy for a Balanced, Representative and Credible World Heritage List.134 While the Tentative List provides a starting point for the eventual nomination of a property, and is a useful tool for the Committee to consider future development of the World Heritage List, it is only the actual nomination from the territorial State that can lead to the property being added to the List. The actual nomination is by way of a standard form which addresses a range of relevant issues and demonstrates ‘the full commitment of the State Party to preserve the heritage concerned’.135 This includes appropriate texts to demonstrate and explain the protection and management systems already in place,136 as well as appropriate policy, scientific, technical, administrative and financial measures that exist and will be adopted in the future. Crucially, the nomination must contain a justification for inscription which addresses at least one of the criteria for outstanding universal value set out in the Operational Guidelines.137 In using this concept to actually construct the World Heritage List, the exclusive, rather than inclusive, nature of the List is reflected in the Operational Guidelines, which provides that: ‘the convention is not intended to ensure the protection of all properties of great interest or value, but only for a select list of the most outstanding of these from an international viewpoint’.138

133 134 135 136 137 138

Article 11(2). Operational Guidelines 2008, Chapter II.B. Operational Guidelines 2008, para. 53. Operational Guidelines 2008, para. 97. Operational Guidelines 2008, para. 132, and Annex 5 part 3.a. Operational Guidelines 2008, para. 52.

World Heritage Convention 253 As such, the criteria are used simply to objectively verify the existence of the outstanding universal value already found by the territorial State to exist in the nominated heritage.139 The adoption of the Global Strategy, which seeks to establish a representative, balanced and credible World Heritage List, and the resulting revision of the 1994 Operational Guidelines, was a significant shift in approach to determining the outstanding universal value of cultural heritage and the resulting make up of the List. The view held by the Committee was that the listing process should be more receptive to the different cultural manifestations of outstanding universal value. To address the imbalances perceived in the List, broad themes that promised potential for new listing were developed, from which might emerge a greater variety of cultural sites from a greater number of States. Essentially, it resulted in a shift ‘from the iconic, “wonders of the world” approach towards a more representative and comparative “selection of the best” approach in the establishment of the List’.140 In giving effect to the Global Strategy, the Committee adopted a number of new approaches to the nomination and listing process. In 2004 the Committee decided on a limit to the number of new sites added to the List each year to 45.141 While the List itself has no limit,142 this will have the effect of slowing down its rate of growth. This ‘slow down’ is, however, part of the strategy to rebalance the List and to encourage nominations from States that have no inscribed properties of the List.143 As such, the Committee also decided that States that already had properties listed on the World Heritage List should submit no more than two nominations a year, with a preference that at least one nomination be for a natural heritage site. This limitation does not apply to States that have no sites inscribed on the List. For States with a large number of sites, the Committee requested these States to consider whether their heritage is already well represented on the List and if so, to slow down their rate of submissions by spacing them further apart, or even suspending nominations, and only nominating a site if it falls within an under-represented category. These categories include, for example, coastal, marine, small-island, polar, desert, rock art and traditional architecture. In 2007, The Committee further elaborated on its system of priority setting. With the limit of a maximum of 45 nominations reviewed a year, the order of priorities is as follows:144

139 Lenzirini, op. cit., p. 215. 140 Yusuf, op. cit., p. 37 141 The decision in 2004 amended an earlier decision made in 2000 at the Committee’s meeting in Cairns, at which the maximum number of additions to the List was limited to 30, with only one nomination from each State which had sites already listed on the World Heritage List permitted. 142 Operational Guidelines 2008, para. 58. 143 Operational Guidelines 2008, para. 60. 144 Operational Guidelines 2008, para. 61.

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i Nominations of properties submitted by States Parties with no properties inscribed on the List; ii Nominations of properties submitted by States Parties having up to three properties inscribed on the List; iii Nominations of properties that have been previously excluded due to the annual limit of 45 nominations and the application of these priorities; iv Nominations of properties of natural heritage; v Nominations of properties of mixed heritage; vi Nominations of transboundary/transnational properties; vii Nominations from States Parties in Africa, the Pacific and Caribbean; viii Nominations of properties submitted by States Parties having ratified the World Heritage Convention during the last ten years; ix Nomination of properties submitted by States Parties that have not submitted nominations for ten years or more. The Committee will finally, for each nomination, make one of four possible decisions.145 It can inscribe the site on the World Heritage List; refer the nomination back to the nominating State for additional information and re-submission at the next Committee session; defer the decision until a more in-depth assessment is made or further study or revision is made by the nominating State; or decide not to inscribe the site. Before deciding not to inscribe the site, the Committee must ‘consult the State Party in whose territory the cultural or natural property in question is situated’.146 While the decision lies within the remit of the Committee, the consultation process does allow for some manoeuvrability, where a deferral or referral might be negotiated rather than an outright refusal to inscribe a property. Even in cases where the latter appears to be the only outcome, the consultation process might allow a State Party to withdraw a nomination rather than having a nomination declined.147 There are no recourse procedures against decisions of the Committee, either in the Convention or the Operational Guidelines, and the only mechanism for a nominating State to have the Committee’s decision reconsidered is to resubmit the nomination in the next year’s nomination round. While the Convention does not specifically provide for deletion of a property from the World Heritage List, this power is implied by its competencies with regard to the List.148 The Operational Guidelines provide for such deletion in two circumstances: first, ‘where the property has deteriorated to the extent that it has lost those characteristics which determined its inclusion in the World

145 Operational Guidelines 2008, Chapter III.G. 146 Article 11(6). 147 P. Strasser, ‘Putting Reform into Action – Thirty Years of the World Heritage Convention: How to Reform a Convention without Changing its Regulations’ (2002) 11 International Journal of Cultural Property 215, 219. 148 Scovazzi, op. cit., p. 169; G.P. Buzzini and L. Condorelli, ‘List of World Heritage in danger and deletion of a property from the World heritage List’ in Francioni, op. cit., p. 197.

World Heritage Convention 255 Heritage List’; and second, ‘where the intrinsic qualities of a World Heritage site were already threatened at the time of its nomination by action of man and where the necessary corrective measures as outlined by the State Party at the time have not been taken within the time proposed’.149 Importantly, the Committee may remove a site from the World Heritage List without the consent of the territorial State. As such, removal from the List effectively acts as a sanction against that State, particularly where the State has obtained the benefit of World Heritage listing, but failed to fulfil the concomitant obligations. The logic of this, however, has been questioned, since the threatened property will still embody its outstanding universal value, and until such time as this is no longer the case, ought to remain on the List.150 It is not necessary for the property to have been listed on the World Heritage List in danger before its deletion from the World Heritage List. The only deletion of a property from the List occurred in 2007 when the Committee decided to delete the Omani Arabian Oryx Sanctuary, inscribed in 1994, because the viability of the wild population appeared uncertain, primarily due to the failure of Oman to give effect to a number of aspects of the Convention and failed to address a number of issues raised by the Committee in previous years.151 The inscription of a cultural heritage site on the List brings with it numerous advantages, including the possibility of accessing international assistance, particularly from the Fund. Some implications, though, have both positive and negative possibilities, such as the resulting increase in international tourism. It may also bring conflict within the territorial States, often between different interest groups,152 including different levels of government.153 The List As at January 2009, there were 878 properties inscribed on the World Heritage List. Of these 679 were cultural properties, 174 natural properties and 25 ‘mixed’ properties evincing both cultural and natural heritage features. These properties are found in 145 of the 186 States Parties to the Convention. Whilst the List has grown at a relatively steady rate, with an average of about 28 inscriptions a year, it has varied from as little as seven in 1989 to as many as 61 in 2000.

149 Operational Guidelines 2008, para. 192. 150 Scovazzi, op. cit., p. 169. 151 Other properties have been considered for deletion, but this has not occurred; including Garamaba National Park in the Democratic Republic of Congo, Cologne Cathedral in Germany, Ichkeul National Park in Tunisia, Kathmandu Valley in Nepal and the pre-Saharan habitat of Ksar of Äit Ben-Haddou in Morocco. 152 See for example the disputes that arose as a result of the inscription of the pyramids of Giza in Egypt on the List. Simmons, op. cit., p. 268; P.J. O’Keefe, ‘Foreign Investment and the World Heritage Convention’ (1995) 4 International Journal of Cultural Property 259. 153 See for example the disputes that arose in Australia, in C. Forrest, ‘An Australian Perspective on World Heritage Sites’ (2007) 27 Revue juridique de l’environnement 123–30.

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In many ways the List reflects the monumentalist approach to heritage.154 Naturally most of these are found in Europe, with the highest number of World Heritage sites found in European States, with Italy listing 43, Spain 40 and France and Germany 33 each. Together these four States have more listed sites than the whole of Africa and the Arab States combined. The high number of European (and North American) sites is not simply a reflection of a Western or European conception of cultural heritage, but its implementation through the Convention mechanisms. Since its inception, European and North American States have been active participants in the Convention, both as members of the Committee and as nominating States. Together with the necessary expertise to address the nomination criteria adequately, and an understanding of the process through previous nominations and Committee membership, these States have been able to exert a greater influence on the process than those States that have simply not had the resources to present flawless nominations.155 A World Commission on Culture and Development report in 1995 concluded: This instrument applies only to immovables and was conceived, supported and nurtured by the industrially developed societies, reflecting concern for a type of heritage that was highly valued in those countries. [The List] reflects a framework which is not really appropriate for the kinds of heritage most common in regions where cultural energies have been concentrated in other forms of expression such as artefacts, dance or oral traditions’.156 Whilst the number of cultural sites exceeds the number of natural sites, this is something of a misconception, as cultural landscapes, for example, are often simply listed as cultural sites. This recent development of the notion of cultural landscapes has been particularly important, not only with new inscriptions since 1992,157 but also in revising the nature of the outstanding universal value of existing listed properties.158 Yet there is still a view that natural sites are underrepresented. The List is not, however, only monumentalist in an historical sense. It also includes a number of modern architectural sites, such as Sydney Opera House in Australia, Ciudad Universitaria de Caracas in Venezuela, Brasilia in Bazil, and Luis Barragá House and Studio and the Central University City Campus of the Universidad Nacional Autónoma de México, in Mexico.

154 Smith, op. cit., p. 27. 155 Italy, for example, in 1997, the year that it held the chairmanship of the Committee, was able to have ten sites inscribed on the List, having already had 17 successful nominations since 1979. 156 As quoted in Strasser, op. cit., p. 224. 157 Such as Rice Terraces of the Philippine Cordilleras in Philippines (1995), Portovenere, Cinque Terre, and the Islands (Palmaria, Tino and Tinetto) in Italy (1997) and Sukur Cultural Landscape in Nigeria (1999). 158 Such as Kakadu National Park in Australia, Tikal National Park in Guatemala and Mount Athos in Greece.

World Heritage Convention 257 Whilst the Operational Guidelines indicate that criteria vi, by which heritage may be associated directly or tangibly with events, living traditions, ideas, beliefs, artistic and literary works of outstanding universal significance, should preferably be used in conjunction with other criteria, it has been used singularly on a number of occasions. These include the listing of Independence Hall in the United States; Auschwitz Concentration Camp in Poland; Hiroshima Peace Memorial in Japan and the Old Mostar Bridge in Bosnia and Herzegovina.159 Whilst properties from all regions of the world are inscribed on the List, 50 per cent are found in Europe and North America. A mere seven per cent are found in the Arab States and for a continent as large as Africa, only nine per cent hail from there. Asia and the Pacific account for 21 per cent of the inscription, with the remaining (14 per cent) found in Latin America and the Caribbean. Whilst European States like Italy and Spain contain the most sites per States, some non-European States are catching up, with China listing 37 sites, Mexico 29 and India 27. Whilst 41 States Parties have no sites inscribed on the List, more than half are African or small Island nations. The Committee’s order of proprieties is designed to address what is seen as an imbalance in these proportions.160 Properties have been added to the List for numerous reasons, many of which are associated with the need for conservation or to address damage caused to the property. For example, the Royal Palaces of Abomey in Benin were inscribed after a tornado had caused damage.161

The List of World Heritage in Danger Article 11(4) provides for the drafting of a List of World Heritage in Danger. A number of conditions are set before a site can be listed on the Danger List. The first is that the property must be threatened by serious and specific dangers. Unusually for such a Convention, a non-exclusive list of examples is provided within the Convention itself: 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.

159 Scovazzi, op. cit., pp. 164–5. 160 Operational Guidelines 2008, para. 61. 161 Musitelli, op. cit., p. 326.

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Second, the conservation of such properties requires ‘major operations’. Finally, assistance must have been requested under the Convention. Unlike the listing of a site on the World Heritage List,162 the Committee does not require the consent of the territorial State to list the site on the Danger List.163 Similarly, while a State may nominate a site for listing on the Danger List, the Committee can remove it without the territorial State’s consent. Since only properties on the World Heritage List can be listed on the Danger List, the consent of the territorial State has in a sense already been granted; not only by the agreement of the territorial State as a State Party, but more specifically by its use of the conventional regime to nominate cultural heritage for listing on the World Heritage List, which includes the possibility of it being listed on the Danger List. Nevertheless, such a listing is a politically sensitive issue.164 For example, the government of Nepal strongly objected to the listing of the Kathmandu Valley on the World Heritage List in Danger, while Australia baulked at the possibility that Kakadu National Park might be similarly listed.165 As a matter of practice though, most properties on the Danger List have been placed there at the request of the territorial State, and in most instances where this was not the case, there has been no objection from the territorial State. Examples of the latter include the Old City of Dubrovnik in 1991, then in Yugoslavia; Angkor Archaeological Park in Cambodia; Mount Nimba Strict Nature reserve in Côte d’Ivoire/Guinea; Sangay National Park in Ecuador; Cologne Cathedral in Germany;166 and Manas Wildlife Sanctuary in India. The requirement that the property be subject to serious and specific danger is relatively easy to meet, especially given the examples cited in the Convention as well as those in the Operational Guidelines.167 The latter gives examples of both ascertained and potential dangers. Ascertained dangers include: ‘serious deterioration of material, serious deterioration of structure and/or ornamental features; serious deterioration of urban or rural space, or the natural environment; serious deterioration of significant loss of historical authenticity; or important loss of cultural significance’. Potential dangers include: ‘modification of juridical status of the property diminishing the degree of protection; lack of conservation policy; threatening effects of regional planning projects; threatening effects of town

162 Article 11(4). 163 See also Operational Guidelines 2008, paras 177, 186, 187. 164 See, however, the 1972 Intergovernmental Committee of Experts views on this, Report of the Intergovernmental Committee of Experts, submitted to the general Conference of UNESCO, June 1972, para. 29. Discussed further in Chapter 1. 165 Boer, op. cit., p. 101. 166 For a more detailed discussion of the conflict that arose in relation to Cologne Cathedral see B. Boer, ‘The federal clause’ in Francioni, op. cit., p. 356; and D. Zacharias, ‘Cologne Cathedral versus Skyscrapers – World Heritage Protection as Archetype of a Multilevel System’ (2006) 10 Max Planck United Nations Yearbook 273. 167 Operational Guidelines 2008, para. 179.

World Heritage Convention 259 planning; outbreak or threat of armed conflict; and gradual changes due to geological, climatic or other environmental factors’. That the dangers faced require ‘major operations’, is a little more problematic, as no examples are given, nor is the term anywhere defined. It does, at least, suggest that the danger ‘must be amenable to correction by human action’.168 Given the discretion vested in the Committee, this can be widely interpreted as the necessary ways by which the existing danger may be eliminated. The requirement that assistance be requested is more problematic. The assistance referred to in article 11(4) refers directly to the seeking of assistance according to article 13 of the Convention. A request for assistance sought according to article 13 is not the same as seeking to have a cultural heritage site listed on the Danger List.169 Nevertheless, once a State has sought assistance, the condition in article 11(4) is met and the Committee may place the property on the Danger List without the consent of the territorial State. Whilst assistance will usually be sought by way of article 13, it need not necessarily take this form.170 In this sense, the seeking of assistance is a prerequisite to the Committee placing that heritage on the Danger List. In the normal state of affairs, this is the process to be expected. A State that has difficulty in protecting and managing the heritage would seek assistance, and if the heritage is, for the reasons assistance is sought, in danger, further assistance is obtained by placing the heritage on the Danger List. For example, in 1996 Ethiopia sought assistance from the World Heritage Fund in relation to protecting the Simien National Park. Subsequently, the Committee added this site to the Danger List. Ethiopia, however, opposed this listing, but since the pre-requisites for article 11(4) were met, the opposition was to no avail. Subsequent consultation and negotiations have, however, reduced the conflict. Importantly, the seeking of assistance is not a prerequisite in the sense that a State can ensure that a property is never placed on the Danger List by never seeking assistance. Article 11(4) further provides that the ‘Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately’. This part of article 11(4) can only have any meaning or effectiveness if it is interpreted so as to allow the Committee considerable discretion in placing the property on the Danger List, including not requiring that assistance has been previously sought by the territorial State.171 It has also been argued that an interpretation that would allow a State to prevent a property being added to the Danger List simply by failing to seek assistance would

168 169 170 171

Operational Guidelines 2008, para. 181. Buzzini and Condorelli, op. cit., p. 125. Vrdoljak, op. cit., p. 228. See also Operational Guidelines 2008, para. 177(d). Discussed in detail in Buzzinine and Condorelli, op. cit., pp. 183–4, and 189–90.

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not be consistent with the nature of the erga omnes obligations set forth in the Convention.172 On the other hand, should a State seek to have property in its territory added to the Danger List, the spirit of the Convention would suggest that this may be considered to be equivalent to a request for assistance under the Convention.173 As such, the condition in article 11(4), requiring that assistance has been requested, is fulfilled by the mere request to place that heritage on the Danger List. This interpretation means that the seeking of assistance is not necessarily a separate pre-requisite for listing, but may be an implied request by a State Party seeking to have the cultural heritage added to the List. In fact, a State seeking to nominate a property to the Danger List may not need any assistance as such, but requires the inclusion on the Danger List for national purposes, such as raising public awareness or leveraging further funding. Not all properties on the Danger List are in developing States and the dangers faced are varied.174 Whilst the provision in article 11(4) that allows the Committee, at any time, to add a cultural heritage property to the Danger List does not require that assistance be sought by the territorial State, it does require that there be an ‘urgent need’ to do so. No further assistance is given in the Convention as to when this threshold may be considered to have been reached. It cannot be equated with the examples set out as ‘serious and specific dangers’, since it allows the prerequisite of assistance that relates to those dangers to be waived. As such, it must relate to a higher threshold. The most obvious factor that would aggravate the danger faced so as to make it urgent would be the imminence of the danger. Other factors, such as the magnitude of the danger, may also be relevant. An important factor, which might arise, is the extent to which the danger becomes urgent because the territorial State itself, through its actions or inactions, has aggravated the danger. This is particularly the case where the territorial State fails to implement its conventional obligations and refuses to co-operate in the international effort to assist it in its protective efforts. This occurred in the case of the Garamba National Park in the Democratic Republic of Congo. The List of World Heritage in Danger can be used as both a form of assistance, requested or welcomed by the territorial State, or as a tool to encourage compliance.175 It might even be used as a form of sanction to highlight a territorial State’s failures.176 The practice has, however, been to cooperate with the territorial States, and instances of listing as a tool to encourage compliance are few; and more so for its use as a sanction.

172 173 174 175 176

Buzzinine and Condorelli, op. cit., p. 183. Ibid., p. 182. For example, Dresden Elbe Valley in Germany. For example, the site of the Curonian Spit, shared by Lithuania and the Russian Federation. For example, the Garamba National Park in the Democratic Republic of Congo.

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World Cultural Heritage not Inscribed on the World Heritage List Curiously, included in chapter III (which concerns the World Heritage Committee and the World Heritage List), is an article that addresses the obligations of the territorial Sate for property that is not inscribed on the List. Article 12 provides that: The fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists. The content of this article, and the legal obligations which subsequently arise, have little to do with the Committee or the World Heritage List and fall more comfortably within chapter II of the Convention, dealing with the obligations of States in relation to heritage that the State identifies as falling within articles 1 and 2 of the Convention. The reason for its placement in chapter III, however, is simply because the article refers to the Lists governed by article 11, and it was considered inappropriate to refer to those Lists in an article which preceded article 11.177 As such, it is simply placed after those Lists are considered in article 12. Article 12 imposes legally binding obligations on States Parties. In particular, it makes clear that cultural heritage identified by States Parties as falling within the definition of article 1, are subject to the obligations set out in chapter II, notwithstanding the fact that they are not listed on the World Heritage List. While article 12 imposes obligations on the territorial State, the Convention also grants mechanisms for supporting such property. As such article 13(1) allows the Committee to receive and study requests for international assistance to secure the protection, conservation, presentation or rehabilitation of property potentially suitable for inclusion in the World Heritage List, while article 4 contemplates States seeking international assistance and co-operation, in particular, financial, artistic, scientific and technical for cultural heritage not listed on the World Heritage List. In a similar manner, a number of provisions in chapter V, concerning international assistance, set out exceptions to the rule that assistance will only be granted to listed property.178 The reality is that while article 12 and chapter II impose obligations on States, it is very difficult to give these duties sufficient content to actually require the territorial State to do anything in relation to non-listed sites. This difficulty is compounded by the difficulty in determining which sites the territorial State actually

177 Lenzerini, op. cit., p. 204. 178 Article 20. See discussed in Lenzerini, op. cit., p. 206.

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considered to have outstanding universal value, with the exception of those on that State’s Tentative List. UNESCO has rarely called on a State Party to adhere to its conventional obligations except in cases where the cultural heritage site has not been nominated by the territorial States, and there is undisputable recognition of its outstanding universal value. This was the case for the Bamiyan Buddhas in Afghanistan and the ancient city of Pagan in Myanmar.179 In both cases UNESCO has failed to achieve the results it sought to achieve. Given that there are further cultural heritage sites of outstanding universal value which are not on the World Heritage List,180 for whatever reason, article 12 provides at the very least some basis for urging the territorial States, or other States, to provide adequate protection. This, however, might be in vain. In China, for example, the building of the Three Gorges Dam will inundate over 1,300 archaeological sites, including important sites from the Paleolithic Period, the Warring States Period (475–221 BC) and the Tang Period (AD 618–907), as well as natural sites and cultural landscapes. Some of these, it has been suggested, could possibly meet the World Heritage criteria for inscription. But given the economic importance of the Dam, this is highly unlikely to happen for these sites.181

International assistance The World Heritage Convention is not simply about constructing lists of heritage of outstanding universal value. At its core is the creation of an international regime designed to ‘protect’ that heritage through a co-operative system that includes the provision of assistance to the States on whose territory the world cultural heritage is found. The establishment of the World Heritage Committee and the World Heritage Fund embodies this co-operative protective regime. Chapter V of the Convention (articles 19–26) sets out the conditions and arrangements for international assistance, while chapter IV provides for the establishment of the World Heritage Fund. At the core of the provision for international assistance is the World Heritage Committee. This aspect of the Committee’s function is addressed in article 13, contained in chapter III that addresses the establishment and role of the Committee. To fully understand the role of the Committee in relation to the provision of international assistance, chapter V and article 13, though separated in the Convention, are effectively inseparable and need to be read and interpreted together. Whilst generally article 13 sets out

179 Ibid., p. 208. 180 This includes, for example, a number of sites in the disputed Palestinian territories such as the Basilica of the Nativity in Bethlehem, the historic centre of Nablus and the old city of Hebron. 181 Gruber, op. cit., p. 278. The Three Gorges Relics Rescue Programme was initiated to possibly relocate some of the cultural heritage. Reminiscent of the move of the giant Statues of Ramses II at Abu Simbel, the Temple of Zhang Fei, AD 220, is to be moved ‘brick by brick’.

World Heritage Convention 263 the objectives and scope of international assistance, chapter V addresses the conditions and forms of assistance. The central role played by the Committee in the process is found across both article 13 and chapter V. Cultural heritage eligible for international assistance International assistance as such is not a right under the Convention. Article 19 simply provides that any State Party ‘may request international assistance for property forming part of the cultural or natural heritage of outstanding universal value situated within its territory’. While this does grant States the right to make a request, it does not guarantee that assistance will be provided. It also has the effect of limiting the ability to request assistance only to States Parties.182 However, it does not indicate the scope of this assistance in terms of the properties that may be subject to assistance, since article 19 is wide enough to include all properties that each State determines to have outstanding universal value. This limitation is set out in article 20, which provides that international assistance may be granted ‘only to property forming part of the cultural and natural heritage which the World Heritage Committee has decided, or may decide, to enter in’ the World Heritage List or Danger List. Whilst clearly property on the Lists is eligible for assistance, the only other property that is eligible is that which the Committee ‘may decide’ to enter onto the Lists. This is similarly reflected in article 13(1) which requires the Committee to consider requests for international assistance from States Parties in respect of ‘property forming part of the cultural or natural heritage, situated in their territories, and included or potentially suitable for inclusion in the Lists’.183 In its widest sense, however this would include all heritage that each State considers to have outstanding universal value, and therefore potentially suitable for inscription. Whilst the co-operative system ought, in principle, to assist States to protect such properties, the reality of the Committee’s ability to function, and of the extent of assistance available, means that the scope of the heritage eligible for assistance requires both the narrowing and the setting of priorities. The narrowing of the scope of the heritage eligible for assistance occurs in article 20 itself by the creation of a number of ‘exceptions’ to the general rule. Article 20 is made subject to the provisions of article 13(2), article 22(c) and article 23. Article 13(2) provides that requests for assistance ‘may also be concerned with identification of cultural or natural property defined in articles 1 and 2, when preliminary investigations have shown that further inquiries would be justified’.184 This mirrors the mention of international assistance in article 4 with regard to the

182 However, non-State actors such as IUCN and ICCROM have been granted some assistance. UNESCO Doc. WHC-05/29.COM/14B. See Vrdoljak, op. cit., p. 227. 183 Emphasis added. The Operational Guidelines described also uses the phrase ‘potentially suitable for inscription’. Operational Guidelines 2008, para. 233. 184 Emphasis added.

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‘identification, protection, conservation, presentation and transmission to future generations of the cultural heritage’. Similarly, article 22(c) allows for assistance to be granted for the training of staff and specialists in the identification of cultural heritage, while article 23 provides that the Committee may provide assistance to national or regional centres for the training of staff and specialists in the field of identifying cultural heritage. These provisions naturally provide an avenue for developing States to obtain assistance in what would be the very initial step in identifying what might eventually be listed heritage.185 By setting these out as an exception to the general rule in article 20,186 it suggests that the scope of that article is narrowed, at least, to ‘pre-identified cultural heritage’.187 According to Vrdoljak, this includes heritage not on the Lists ‘provided (implicitly) that it is of such outstanding universal value as to warrant its listing at a later date’.188 This would include, for example, those properties on each State’s Tentative List and properties which are nominated for inscription but where a decision has been deferred or referred back to the territorial State. Whilst allowing the Committee some latitude in determining whether assistance is granted, it does function as a mechanism for setting priorities.

Types of international assistance The combination of article 13(1) and 20 reflects that, at its core, international assistance may be requested in order ‘to secure the protection, conservation, presentation or rehabilitation of cultural heritage on the Lists or which the Committee may decide to enter on the Lists’.189 Exceptionally, assistance may be granted for the identification of potential world heritage. Article 22 gives some content to what might be meant by ‘conservation, presentation or rehabilitation’ by giving examples of the types of assistance that might be granted by the Committee. It includes: studies concerning the artistic, scientific and technical problems raised by the protection, conservation, presentation and rehabilitation of the cultural and natural heritage; provision of experts, technicians and skilled labour to ensure that the approved work is correctly carried out; supply of equipment which the State concerned does not possess or is not in a position to acquire; low-interest or interest-free loans which might be repayable on a long-term basis; and the

185 The role of the Committee in this respect is also specified in article 11(7), which provides that the ‘Committee shall, with the agreement of the States concerned, co-ordinate and encourage the studies and research needed for the drawing up of the lists referred to in paragraphs 2 and 4 of this article’. 186 Explicitly in the case of articles 13(2), 22(c) and 23, and implicitly in the case of article 4. Lenzirini also regards article 13(1) as an implicit exception to the scope of article 20. Lenzrini, op. cit., p. 206. 187 A. Lemaistre and F. Lenzerini, ‘International Assistance’ in Francioni, op. cit., p. 309. 188 Vrdoljak, op. cit., p. 226. 189 Article 13(1).

World Heritage Convention 265 granting, in exceptional cases and for special reasons, of non-repayable subsidies.190

Requests and granting of assistance The procedure by which requests for international assistance is made, is largely left to the Committee.191 The Convention simply suggests that, at a minimum, the request should ‘define the operation contemplated, the work that is necessary, the expected cost thereof, the degree of urgency and the reasons why the resources of the State requesting assistance do not allow it to meet all the expenses’.192 The use of the term ‘should’, rather than ‘shall’ introduces sufficient discretion for the Committee to decide the procedure without necessarily having to address all the above considerations. However, the Convention does require, as a mandatory provision, the submission of ‘such information and documentation … as it has in its possession and as will enable the Committee to come to a decision’.193 Requests should also be supported by experts’ reports whenever possible.194 Applications for assistance on a large scale must be preceded by detailed scientific, economic and technical studies’ which ‘draw upon the most advanced techniques for the protection, conservation, presentation and rehabilitation of the natural and cultural heritage’.195 The actual procedure for applying for assistance is determined by the Committee and set out in the Operational Guidelines, which includes a standard application form.196 The Committee is granted broad powers to ‘decide on the action to be taken with regard to these requests, determine where appropriate, the nature and extent of its assistance, and authorize the conclusion, on its behalf, of the necessary arrangements with the government concerned’.197 The Committee cannot rely solely on the information provided by the applicant, and is required to ‘carry out such studies and consultations as it deems necessary’ before making a decision.198 This will usually include obtaining assistance from the advisory bodies: the International Center for the Study of the Preservation and Restoration of Cultural Property (ICCROM or Rome Center); the International Council of Monuments and Sites (ICOMOS) and the International Union for Conservation of Nature

190 Operational Guidelines 2008, para. 241 provides a summary table of the forms of assistance and the budget ceilings for each form. Whilst generally conforming to article 22, some minor discrepancies are noted by Lemaistre and Lenzerini, op. cit., pp. 313–20. 191 Article 21(1). 192 Article 21(1). 193 Article 19. 194 Article 21(1). 195 Article 24. 196 Operational Guidelines 2008, Chapter VII and Annex 8. 197 Article 13(3). 198 Article 23(3).

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and Natural Resources (IUCN).199 Whilst the Committee has a broad discretion to determine both the order of priorities200 and the nature and extent of any assistance to be provided, some guidelines are suggested in the Convention. In particular, article 21(2) provides that requests ‘based upon disasters or natural calamities should, by reasons of the urgent work which they may involve, be given immediate, priority consideration by the Committee, which should have a reserve fund at its disposal against such contingencies’. As a practical reflection of this, priority is given to properties on the Danger List.201 As to non-emergency requests, article 21(4) further provides that, in determining the priorities, the Committee shall ‘bear in mind the respective importance for the world cultural and natural heritage of the property requiring protection, the need to give international assistance to the property most representative of a natural environment or of the genius and the history of the peoples of the world, the urgency of the work to be done, the resources available to the States on whose territory the threatened property is situated and in particular the extent to which they are able to safeguard such property by their own means’. To this the Operational Guidelines add further consideration; such as whether financial assistance will have a multiplier effect and promote financial and technical contributions from other sources, the exemplary value of the activity in respect to scientific research and development of cost of effective conservation techniques and the educational value both for the training of experts and for the general public.202 Importantly, when the funds available are limited, priority is to be given to the Least Developed Country or Low Income Economy as defined by UN Economic and Social Council’s Committee for Development Policy, a Lower Middle Income Country as defined by the World Bank, a Small Island Developing State or a State Party in a post-conflict situation.203 Finally, the impact of the assistance in furthering the five Strategic Objectives of the Committee is considered.204 The need for the Committee to constantly re-evaluate the mechanisms by which it prioritises requests for assistance reflects the changing social, economic and political landscape within which it functions. While the Convention provides that, as a general rule, only part of the cost of work necessary should be borne by the international community, so that the territorial State should contribute a substantial share of the resources necessary for protection, conservation, presentation or rehabilitation of the cultural heritage, the reality is that most developing States rely on international assistance for a large proportion of necessary resources

199 Article 13(7). See further below. 200 Article 13(4). 201 Operational Guidelines 2008, para. 236. The requirement that the State party seeking assistance have paid all dues to UNESCO does not apply when seeking emergency assistance. Operational Guidelines 2008, para. 237. 202 Operational Guidelines 2008, para. 239. 203 Operational Guidelines 2008, para. 239(b). 204 Budapest Declaration, 28 June 2002.

World Heritage Convention 267 to achieve this. The difficulty then of determining priorities is a function of the size of the ever dwindling World Heritage Fund.205 The administration of the international assistance granted Once the Committee has decided to grant assistance to a State Party in relation to a particular cultural heritage property,206 an agreement is entered into with the particular State Party and which sets out parameters of the assistance.207 Importantly, an evaluation of the work or project obtaining international assistance is undertaken by the Committee within three months of its completion.208 Provision has also been made in the Operational Guidelines209 for the monitoring of projects, including through site visits. The monitoring and evaluation role of the Committee has become an increasingly important tool for the Committee in evaluating the effectiveness and efficiency in the way in which the Fund is being utilised, and ultimately the extent to which this contributes to the attainment of the Committee’s Strategic Objectives.210 The Committee has a number of other administrative functions, including drawing up and updating a list of property for which international assistance has been granted, and publishing the list.211 The World Heritage Fund The establishment of the World Heritage Fund,212 the main purpose of which is to provide international assistance to States Parties, has been an important component of the success of the Convention in terms of attracting States to become a party. This is particularly so for developing States who might not only obtain scientific and management assistance from UNESCO and other States, but direct financial assistance through the Fund. The Fund, which constitutes a trust fund managed according to the Financial Regulations of the Organisation, consists mainly of contributions made by the States Parties. It also consists of contributions, gifts or bequests made by non-States Parties, international organisations such as UNESCO and UN Development Program, and from public or private bodies or individuals. Any interest due on the resources of the Fund or funds raised by collections and receipts from events organised for the benefit of the Fund, as well as any other resources authorised by the Fund’s regulations,

205 Article 13(6) provides that ‘[t]he Committee shall decide on the use of the resources of the Fund established under Article 15 of this Convention’. 206 Article 13(8) requires the decisions of the Committee to be taken by a majority of two-thirds of its members present and voting. 207 Article 26. 208 Operational Guidelines 2008, para. 256. 209 Operational Guidelines 2008, para. 256 210 See Vrdoljak, op. cit., p. 238. 211 Article 13(5). 212 Article 15(1).

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are included.213 While the Committee defines the purposes for which the Fund will be used, within the constraints set out in the Convention, the Committee may accept contributions made specifically for a certain programme or project provided that the Committee had, prior to that contribution being made, decided to implement the particular project or programme. No political conditions, however, may be attached to contributions made to the Fund.214 The nature of States Parties contribution to the Fund The contribution to the Fund from States Parties may be made voluntarily or compulsory.215 The compulsory nature of a contribution to the Fund was hotly debated during negotiations leading to the adoption of the Convention, and article 16 reflects a compromise text that is finely balanced.216 Article 16(1) provides that States Parties undertake to pay to the Fund a contribution every two years. The amount paid reflects a uniform percentage applicable to all States, which is determined by the General Assembly of States Parties to the Convention at the meeting of the General Conference of UNESCO. However, in no case shall the compulsory contribution of States Parties exceed one per cent of the contribution to the Regular Budget of UNESCO. However, article 16(2) provides that a State may declare, when depositing its instrument of ratification, acceptance or accession, that it shall not be bound by article 16(1) – that is, that it will not be bound to make such compulsory contributions to the Fund.217 Naturally, a provision such as this has the risk that many States will enter such a reservation, effectively rendering the Fund defunct. The compromise inherent in article 16 takes the form of a ‘voluntary’ contribution which all States parties are bound to pay. Article 16(4) provides that those States that have indicated that they will not be bound to make compulsory payments, ‘shall’ pay on a regular basis, at least every two years, an amount that ‘should’ not be less than the contributions which they should have paid if they had been bound to make compulsory payments. The use of the term ‘shall’ renders the payment obligatory, and as such, is no different to the compulsory payment provided for in article 16(1). What makes this payment ‘voluntary’ is not the payment itself, but the amount to be paid. The amount voluntarily paid ‘should’ not be less than what would have been paid under article 16(1), rather than what ‘shall’ or must be paid. Essentially those States that

213 214 215 216

Article 15(3). Article 15(4). Article 15(3)(a). For an overview of the debate leading to the drafting of both articles 15 and 16, see F. Lenzerini, ‘World Heritage Fund’ in Francioni, op. cit., pp. 269–87. 217 Article 16(3) provides for a mechanism for a State Party to withdraw its reservation to article 16(1). The following States made declarations according to article 16(2): Brazil, Bulgaria, Cape Verde, Denmark, France, Germany, Holy See, Moldova, Norway, Oman, United States of America, and South Africa.

World Heritage Convention 269 make a declaration not to make compulsory payment are still required to make regular compulsory payments, but are under no obligation to pay any particular amount. That they ‘should’ pay the same as those States making a compulsory payment is merely to encourage these States to make as large a contribution as is possible. The need for regular payments and the appeal to meet the amount that would be compulsorily paid, is necessary to allow for a stable budget and for ‘the Committee to plan its operations effectively’.218 Built into article 16 are two mechanisms to encourage States to make regular compulsory contributions. First, the determination of the uniform percentage contribution to be made requires a majority of the States present and voting in the General Assembly of States Parties to the Convention. However, States Parties that have made a declaration that they will not be bound to make compulsory payments are not eligible to vote.219 Such States, therefore, have no vote as to the amount they ought to pay. Second, any State Party which is in arrears with the payment of its compulsory or voluntary contribution for the current year and the calendar year immediately preceding it shall not be eligible as a Member of the World Heritage Committee. If a defaulting State is already a member of the Committee its membership ‘shall terminate at the time of the next election’ for Committee members.220 Any addition to the Fund is welcomed, and to encourage as wide a range of potential sources as is possible, article 17 requires States Parties to consider or encourage the establishment of national, public and private foundations or associations whose purpose is to invite donations to the Fund, while article 18 further requires that States Parties give their assistance to international fund-raising campaigns organised for the Fund under the auspices of UNESCO. For its part, the World Heritage Committee is also required to seek ways of increasing the Fund and shall take all useful steps to this end.221 The management of the Fund The Fund in fact constitutes a relatively minor part of the total resource available to the World Heritage Centre. Additional to the Fund, the ordinary UNESCO budget allocation to the Centre, and the extra-budgetary funds made available by UNESCO, make a considerably larger contribution than that of the States Parties directly through the Fund. As such, non States Parties to the Convention, who are member States of UNESCO (though few) do effectively subsidise the running of the World Heritage Centre. The Fund itself, to be used to provide international assistance to States Parties world heritage properties, is modest in relation to the ever growing number of

218 219 220 221

Article 16(4). Article 16(1). Article 16(5). Article 13(6).

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world heritage sites. While the Committee has limited the possible number of new sites each year to 45, the continual growth of the List puts increasing pressure on the Fund. This is particularly so since many of the newer States Parties are developing States that do require international assistance. Given that the Fund is no longer able to provide effective support for the growing number of world heritage properties, the need to mobilise governments, civil society and local populations living near world heritage sites has become an essential component of heritage conservation.222 A number of publicly funded foundations have been established both at a regional and national level. The Nordic World Heritage Foundation, for example, not only provides support for world heritage in that region, but also provides support for developing States.223 In 2005, the African World Heritage Fund was established, with initial support from South Africa, and further support from both African (Algeria and Gabon) and non-African States (China, India, Norway and Netherlands). Privately funded foundations have also contributed to world heritage conservation, including the US based United Nations Foundation and World Monuments Fund. Furthermore, in 2002 the World Heritage Partnership for Conservation was established to foster the development of partnerships not only with NGOs and civil society, but also with the business community. Whilst these foundations provide general and ongoing support for world heritage sites, specific sites often require immediate attention. UNESCO has launched a number of safeguarding campaigns to support specific sites threatened by disaster, to which States Parties, pursuant to article 18 of the Convention, are required to give their support. Indeed, it was the safeguarding efforts to save sites such as Abu Simbel (Egypt) and Venice and Florence (Italy) which initiated the development of the Convention. Further safeguarding campaigns were initiated after the Convention was adopted but before any world heritage sites were even listed, such as the campaigns to save Borobudur (Indonesia) and Moenjodaro (Pakistan). A flagship safeguarding campaign was that initiated to save the Angkor Archaeological Park in Cambodia. The realisation that the World Heritage Fund is insufficient in itself to provide for protection and conservation has required the development of a range of strategies to further enhance funding. The relative value of the Fund has devalued over the past decade, and with the increased number of developed States that have recently become a party to the Convention, the Fund has been further stretched.224 Yet the Fund remains the main source for the Committee to provide international assistance. To address the changing world heritage environment, considerable effort has been made in recent years to re-evaluate the way in which the Committee determines how the Fund is to be used, and generally in the provision of international assistance. The Committee no longer responds to

222 L. Patchett, ‘Activities to support the world heritage fund’ in Francioni, op. cit., p. 291. 223 Ibid., p. 292. 224 Vrdoljak, op. cit., p. 241.

World Heritage Convention 271 ad hoc requests by States for international assistance, and with the availability of greater information on previous grants of international assistance, a better understanding on how to maximise these grants, and how to use them to leverage further assistance, has aided the development of a more strategically planned process for the granting of international assistance.

The administrative framework The Convention provides for the establishment of a Secretariat to assist the World Heritage Committee.225 Initially the Secretariat was simply drawn from UNESCO permanent staff and from staff seconded by States parties, with temporary staff used as needed, and paid for from the World Heritage Fund. In 1992 a more permanent secretariat was created by the Director-General of UNESCO in the form of the World Heritage Centre, based at UNESCO headquarters in Paris.226 The actual role of the World Heritage Centre is not very clearly defined in the Convention, providing only that the Director-General of UNESCO (through the Secretariat) ‘shall prepare the Committee’s documentation and the agenda of its meetings and shall have the responsibility for the implementation of its decisions’. To this skeletal framework is added resolutions and decisions of the General Assembly of States Parties, and the World Heritage Committee, and importantly, the Operational Guidelines.227 The secretariat’s main tasks, as set out in the Operational Guidelines, are: a b c

d e f g

the organisation of the meetings of the General Assembly and the Committee; the implementation of decisions of the World Heritage Committee and resolution of the General Assembly and reporting to them on their execution; the receipt, registration, checking the completeness, archiving and transmission to the relevant Advisory Bodies of nominations to the World Heritage List; the co-ordination of studies and activities as part of the Global Strategy for a Representative, Balances and Credible World Heritage List; the organisation of Periodic Reporting and co-ordination of Reactive Monitoring; the co-ordination of International Assistance; the mobilisation of extra-budgetary resources for the conservation and management of World Heritage properties;

225 Article 14. 226 Operational Guidelines 2008, para. 27. 227 As to the difficulties in determining the roles of each of these bodies, see Strasser, op. cit., pp. 229–39.

272 h i

World Heritage Convention the assistance to States Parties in the implementation of the Committee’s programmes and projects; and the promotion of World Heritage and Convention through the dissemination of information to States Parties, the Advisory Bodies and general public.228

The Operational Guidelines are, however, replete with other references to the secretariat and roles undertaken, including, for example, providing States with information and assistance in the actual nomination process for having properties listed on the World Heritage List.229 While most of these activities are of purely administrative character, others venture into the potentially difficult political arena.230 The requirement that the secretariat report to the Committee on the state of conservation of specific World Heritage properties under threat, called reactive monitoring,231 potentially puts the secretariat and the territorial States at odds. Attention is therefore specifically drawn to the objective of preventing the deletion of any property form the World Heritage List,232 and requiring close cooperation with the territorial State in order to minimise any potential conflict and to put the process in the context of supporting, co-operatively, the territorial States with the protection of the world heritage. Similarly, with the decision to limit the number of nominations considered for inscription each year to 45, the Secretariat will be required to apply the Committee’s priorities to determine which nominations will be forwarded to the Advisory Bodies and hence to the Committee for consideration.233 Nevertheless, the World Heritage Centre is largely regarded as being a successful secretariat, and this success is reflected in the number of States now party to the Convention and to the ever increasing number of nominations for inclusion on the World Heritage List. The advisory bodies Three advisory bodies play an important role in the protection of the world heritage and in the functioning of the conventional regime: ICCROM, ICOMOS and IUCN.234 These are not surprising since the World Heritage Convention evolved from initiatives taken by ICOMOS and IUCN. The roles played by these NGOs, however, are unique to the extent that they are specifically addressed in the Convention and a role carved out for the respective organisations. Article 14, for example, requires the Director-General of UNESCO to utilise ‘to the fullest extent possible the services of ’ ICCROM, ICOMOS and IUCN in their respective areas of competence and capability, while article 13(7) requires the

228 229 230 231 232 233 234

Operational Guidelines 2008, para. 28. Operational Guidelines 2008, para. 126. Vrdoljak, op. cit., p. 253. Operational Guidelines 2008, Chapter IV.A. Operational Guidelines 2008, para. 170. Strasser, op. cit., pp. 237–8. See Vrdoljak, op. cit., pp. 261–4 on the role of each of these organisations.

World Heritage Convention 273 Committee to co-operate with these organisations. The importance of these advisory bodies is reflected in the fact that article 8(3) specifically allows representatives of these bodies to attend the meetings of the Committee in an advisory capacity. The Operational Guidelines provide further details on these advisory bodies and their roles.235 Both IUCN and ICOMOS have important roles to play in the nomination process, both for the inscription of properties on the World Heritage List236 but also on the Danger List,237 and in the continual monitoring of these cultural heritage properties.238 Further roles included ‘reviewing requests for International Assistance submitted by States Parties, and providing input for capacity-building activities’.239 ICCROM plays a specific role in ‘training personnel responsible for cultural heritage management and conservation, monitoring the state of conservation of World Heritage properties, reviewing requests for International Assistance submitted by States Parties, and providing input for capacity-building activities’.240 The role of these technical and scientific organisations is not, however, without controversy. While they play an important role in increasing transparency and depoliticising the decision-making process, particularly in the inscription of properties on the World Heritage and Danger Lists and in the granting of international assistance, they have also been criticised with lacking accountability and transparency themselves.241 Furthermore, ICOMOS has also been criticised for being Eurocentric given its emphasis on ‘monument and sites’, and less sympathetic to heritage found in developing States.242 The reporting structure Within the administrative framework for the working of the Convention are a number of reporting requirements from all participants. The success of the Convention, with its large number of States Parties, increasing numbers of public and private partnerships, growing World Heritage List and developing educational programmes, rests upon the accurate recording and understanding of the activities being undertaken. The Convention specifically requires certain reports to be made, while the Operational Guidelines have added to the range of reports required by and for different bodies.

235 Operational Guidelines 2008, Chapter I.G. 236 Operational Guidelines 2008, Chapter III.E, which includes a set of principles to be adhered to in the process at para. 148. 237 Operational Guidelines 2008, paras 184–5. 238 Operational Guidelines 2008, paras 171 and 200 239 Operational Guidelines 2008, para. 33. 240 Operational Guidelines 2008, para. 35. 241 Vrdoljak, op. cit., p. 260. 242 Simmonds, op. cit., p. 263.

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Importantly, article 29(1) provides that States Parties must submit reports to the General Conference of UNESCO in which information on the legislative and administrative provisions that they have adopted and other action which they have taken for the application of this Convention, together with details of the experience acquired in this field, is set out. These periodic reports, which are to be brought to the attention of the World Heritage Committee’,243 serve four main purposes: a b

c

d

to provide an assessment of the application of the World Heritage Convention by the State Party; to provide an assessment as to whether the outstanding universal value of the properties inscribed on the World Heritage List is being maintained over time; to provide up-dated information about the World Heritage properties to record the changing circumstances and state of conservation of the properties; to provide a mechanism for regional co-operation and exchange of information and experiences between States Parties concerning the implementation of the Convention and World Heritage conservation.244

The submission of periodic reports and the Committee’s response is important ‘for more effective long term conservation of the properties inscribed, as well as to strengthen the credibility of the implementation of the Convention’.245 The reporting thus ensures that the properties inscribed in the List not only maintain their outstanding universal value, but that their value is enhanced through improved research, management and conservation activities. States Parties are not the only entities required to submit reports on their activities. The Committee itself is required to submit a report on its activities at each of the ordinary sessions of the General Conference of UNESCO.246 The World Heritage Centre is also required to report to the General Assembly of UNESCO on the implementation of decisions made by the Committee.247 Furthermore, a range of reporting activity takes place between the World Heritage Centre, the Committee and the Advisory bodies in relation to nominations of sites, the implementation of the Committee’s Global Strategy and Reactive Monitoring reports. Together a wealth of information is made available through these reporting requirements, most of which is then made publicly available, serving an educational and informational role as well as achieving the co-ordinated implementation of the Convention.248

243 244 245 246 247 248

Article 29(2). Operational Guidelines 2008, para. 201. Operational Guidelines 2008, para. 202. Article 29(3). Operational Guidelines 2008, para. 28(b). See generally Boer, op. cit., pp. 335–43.

World Heritage Convention 275 The relationship between UNESCO and the World Heritage administrative structure While conventions may be sponsored and adopted by UNESCO’s General Conference pursuant to its Constitution, once a convention comes into force, it achieves a life of its own, and binds only those States which are party to it. This, however, can be problematic, since the negotiation of a treaty sponsored by UNESCO does not require that all parties negotiating the convention be States Parties to UNESCO. UNESCO simply acts as a host to parties negotiating the treaty. States may therefore become a party to a convention whilst not being a party to UNESCO. As such, the General Assembly of the States parties to a Convention cannot bind third States. Since UNESCO itself is simply created by a multi-lateral treaty, the States Parties to that treaty, through its General Conference, Executive Board or Secretariat, cannot bind States beyond the particular remit of its Constitution. Once a convention is established, it effectively becomes independent of its parent, UNESCO. Where the convention then creates any specific relationship between UNESCO and any particular body created by the Conventions, difficulties in competencies arise. The relationship between UNESCO and the bodies created in the World Heritage Convention have been problematic at times. The establishment of the World Heritage Committee, within the structure of UNESCO, has led to disputes concerning decision-making powers, and the hierarchy between these bodies and its organs. In particular, a concern voiced by the Committee is that, at times, its powers are subordinated within UNESCO’s organisational hierarchy.249 Partly, this arises because the Committee is, in terms expressed in article 8(1) ‘established within’ UNESCO. As such, it might be conceived as being in some way subordinate to other UNESCO bodies. However, this reference ought to be read in the context of the article 14(1) which provides that the ‘World Heritage Committee shall be assisted by a Secretariat appointed by the Director-General’ of UNESCO. This entails a close relationship between UNESCO and the Secretariat, and the Committee. Nevertheless, this does not subordinate the Committee to any other bodies in relation to matters falling within the Committee’s remit as set out in the constitutional document for the Committee – the World Heritage Convention. The creation of the World Heritage Centre as the secretariat to assist the World Heritage Committee is itself problematic. This secretariat is unique as no other cultural heritage convention provides for the establishment of such a body. Furthermore, article 14 of the World Heritage Convention provides little guidance in terms of defining the role of the secretariat, providing only that Director-General of UNESCO (through the Secretariat) ‘shall prepare the Committee’s documentation and the agenda of its meetings and shall have the responsibility for the implementation of its decisions’. So extensive and ill-defined

249 Vrdoljak, op. cit., p. 221.

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are these roles that it has led to considerable tension between the Secretariat, the World Heritage Committee, the General Assembly of States Parties and other organs of UNESCO.250 The degree to which the World Heritage Centre, though based at UNESCO headquarters in Paris, is a completely autonomous entity was the subject of intense debate in the first years of its existence, with calls for both a greater degree of autonomy from some States Parties, and a recognition by others that it is central to UNESCO’s overall implementation of the suite of UNESCO sponsored cultural heritage conventions, requiring a close degree of implementation and control. The matter was resolved with the confirmation by the Director-General that the World Heritage Centre fell within his direct control and within the remit of the Assistant Director-General for Culture.251 As such, while each Convention, and the institutional implementing bodies it creates, is autonomous, close co-operation is required in order to ensure the implementation of all conventions to cultural heritage is a co-ordinated, non-contradictory manner.

The nature of the international obligations in the World Heritage Convention The Convention has been described as ‘soft law’ in the sense that ‘a clear prevalence of rights and advantages over legal obligations’ is to be found in the Convention.252 State sovereignty is central to the regime, and the duties imposed on States, which only really take hold after a property has been inscribed on the World Heritage List, do not necessarily allow for effective enforcement. The duties embodied in articles 4 and 5, for example, have been described as ‘a sort of moral commitment that should be respected’, but which does not amount to a mandatory obligation.253 Similarly, article 6 has been described as simply ‘incapable of producing definitive legal obligations which may be internationally enforced’.254 The same applies to article 12, effectively limiting the practical protection regime to listed properties. Nevertheless, States Parties are under an obligation to meet these obligations as far as is possible in accordance with the spirit of the Convention. Certainly many of the duties or obligations are difficult to articulate in a manner which allows for enforcement. This, however, does not detract from the nature of the duties undertaken in relation to Listed properties, and the obligation to co-operate in the protection of the World Heritage.

250 Vrdoljak, p. 245. 251 Ibid., p. 249. 252 F. Francioni and F. Lenzirini, ‘The Future of the World Heritage Convention: Problems and Prospects’ in Francioni, op. cit., p. 402. 253 F. Lenzirini, ‘Final Clauses’ in Francioni, op. cit., p. 348. 254 Ibid., p. 207.

World Heritage Convention 277 Obligations erga omnes While the obligations set out in the Convention may be modest, and arguably difficult to enforce, the nature of these obligations at an international level requires some scrutiny. The preamble and objectives of the Convention raise the question of whether there exists an interest (both rights and duties) of the ‘international community’ as a whole, separate from individual States, or represented by third party States, in the protection of World Heritage. The preamble, for example, notes that 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 ’,255 and that the safeguarding of cultural heritage is of importance to ‘all the peoples of the world ’.256 Most revealing though, is the sixth recital, which considers that there is a need to preserve certain heritage ‘as part of the world heritage of mankind as a whole’. Furthermore, an obligation appears to be imposed on the international community in article 6 of the Convention, which states that ‘the States Parties to this Convention recognise that such heritage constitutes a World Heritage for whose protection it is duty of the international community as a whole to co-operate’.257 Third States may, however, be granted rights under a conventional regime, to the extent that any State may indicate that it does not want that right to vest with it.258 This, however, is predicated on the intention to vest such rights in third States. Whilst the preamble and the principle underpinning the notion of a World Heritage suggests some form of collective interest, nothing in the Convention itself suggests the intention to confer any rights on third States. Indeed, to confer such rights would not only be inequitable in the sense of granting third States’ rights without requiring any reciprocal obligations,259 but it would simply undermine the conventional regime itself, based as it is on States’ co-operation. Since it would be contrary to international law to impose on third States obligations to which they would not have assented, the ‘international community’, referred to in the Convention, can only mean States Parties to the World Heritage Convention.260 The nature of the obligation then owned by a State Party to all other States Parties is an obligation owed erga omnes.261 In particular, the combination of article 4, which recognises the primary role of the State in whose territory the cultural heritage is found, and article 6, which requires the States Parties to recognise that such heritage constitutes a World Heritage for whose protection it is duty of the international community as a whole to co-operate, illustrates the nature of the

255 256 257 258 259 260 261

World Heritage Convention, Second Recital (emphasis added). World Heritage Convention, Fifth Recital (emphasis added). Emphasis added. Article 36(1), Vienna Convention. O’Keefe (2004) op. cit., p. 191. Carducci, op. cit., p. 125. See ibid., pp. 132–45; Buzzini and Condorelli, op. cit., pp. 177–80.

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erga omnes obligation.262 By recognising, on the one hand, that the territorial State has the primary obligation to protect the cultural heritage, but that other States have an interest in that heritage as part of the ‘international community’, and on the other hand, the agreement of other States to contribute to the Fund, and to provide assistance to the State in whose territory the World Heritage is found, the nature of the obligation is owned to all States Parties to the Convention. Enforcement of obligations Boer and Wiffen, considering the duties and obligations found within the Convention, conclude that ‘a breach of any of them attracts no legal penalty, sanction or remedy provided under the Convention. To that extent, referring to the matters required to be done by States parties as a duty or an obligation is a misnomer’.263 This is certainly true as far as the Convention provides no sanction, but international law may still provide a sanction in that customary international law principles of State responsibility may still be applicable. The most effective enforcement mechanisms do not therefore lie in the hands of States Parties, but in the hands of the Committee. With the power to place a cultural heritage site on the Danger List, and the power to remove a property from the List itself, together with the condemnation that the Committee and its advisory bodies can make on the international diplomatic plane, the Committee is able to exert considerable pressure on States to adhere to their conventional obligations. The temples of Angkor and the Buddhas of Bamiyan The temples of Angkor in Cambodia and the Buddhas in the Bamiyan valley of Afghanistan serve as examples of both the success and failure of the World Heritage regime, and illustrate some of the key principles underpinning this conventional structure. The Angkor Archaeological Park The Angkor Archaeological Park, extending over 400 square kilometres, contains the numerous temples and edifices of the Khmer Empire which flourished from the ninth to the fifteenth century. Whilst styled an ‘archaeological’ park, it has both a natural and human component. The natural setting includes forests, rivers and rice paddies of great natural beauty. The latter also reflects the ongoing human occupation of the site, which is not disassociated with it, but continues many of the traditions and oral histories bound to the Khmer Empire. The wars that devastated the region from the early 1970s resulted in the neglect of the site,

262 Buzzini and Condorelli, op. cit., p. 179. 263 Boer and Wiffen, op. cit., p. 70.

World Heritage Convention 279 as well as widespread illicit excavation, destruction and looting. Initiated by a Japanese Trust Fund, UNESCO launched a safeguarding campaign to save Angkor in 1991. Shortly thereafter, Angkor was inscribed on the World Heritage List and the Danger List. The following year, at a meeting hosted by Japan, 30 States, a number of regional organisations such as the European Union, and international financial organisations, such as the Asian Development Bank, and a number of NGOs, including ICCROM, signed the Tokyo Declaration, thereby establishing the International Co-ordinating Committee on the Safeguarding and Development of the Historic Site of Angkor (ICC). Together with contributions from States of over $50 million, the Cambodian government and UNESCO, the Angkor Archaeological Park has been stabilised and sound management regimes put in place. It was removed from the Danger List in 2004, and while some issues still remain, such as the problems associated with managing a site that has become a major international tourist attraction, it stands as an example of what can be accomplished through international co-operation.264 Bamiyan Buddhas The case of the Bamiyan Buddhas in the Bamiyan valley of Afghanistan illustrates a range of issues in regard to heritage of outstanding universal value. The two colossal statues of Buddha were carved out of sandstone cliffs in the Bamiyan valley in the third and fifth centuries AD, and stood 53 and 36 metres tall. At the time of the destruction of the Bamiyan Buddhas, Afghanistan had been engaged in civil war for at least twenty years, with the Taliban regime in control of 90–95 per cent of the State. The remaining part of Afghanistan, in the far northeast, was still under the control of the Islamic State of Afghanistan, headed by the National Islamic United Front for the Salvation of Afghanistan (Northern Front).265 The Taliban regime, though based on Islamic Sharia law, was also characterised by extreme fundamentalism and intolerance of other religions. The edict prescribing the destruction of the Buddhas, supported by a verdict of the Afghan Supreme Court, provides that ‘it has been decided to break down all statutes/idols present in different parts of the country. This is because these idols have been gods to the infidels, and these are respected even now and perhaps may be turned into gods again’.266 The Buddhas were not the only victims of this policy. The Taliban systematically destroyed all pre-Islamic sculpture, including that contained in the Kabul Museum.267 The destruction of the Bamiyan Buddhas was roundly condemned by the UN, UNESCO, regional groups and a large number of States. Whether it was actually a breach of any international obligation, however, is unclear. Three possibilities

264 See T. Winter, ‘Post-conflict Heritage and Tourism in Cambodia: The Burden of Angkor’ (2008) 14 International Journal of Heritage Studies 524; Patchet, op. cit., pp. 295–8. 265 F. Francioni and F. Lenzirini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14 European Journal of International Law 619, 622. 266 As quoted in Francioni and Lenzirini (2003) op. cit., p. 626. 267 D. Gilman, The Idea of Cultural Heritage, Leicester: Institute of Art and Law, 2006, p. 6.

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arise: that is was a contravention of the 1954 Hague Convention, a contravention of the World Heritage Convention or a contravention of customary international law. At the time of the destruction of the Buddhas, Afghanistan was involved in an internal war in a small part of the northeast of the State. As such, the possibility of the 1954 Hague Convention on the Protection of Cultural Property in Times of Armed Conflict and customary international law of the law of war applying to the destruction of the Bamiyan Buddhas has been debated. Afghanistan was not, however, a party to the 1954 Convention, and as such, recourse only to the customary international law of war is possible. This possibility is rejected by O’Keefe, who argues that strictly a state of armed conflict did not exist, thus excluding the customary international law of armed conflict.268 The destruction did not occur during any actual armed conflict, but was a premeditated, thoroughly planned act without any direct bearing on the armed conflict being waged in other parts of the State. The destruction occurred in a part of the territory of Afghanistan which was free from armed conflict, and at all times under the control of the de facto government of the Taliban. The fact that the Taliban regime was only recognised by a small number of States269 as the legitimate government of Afghanistan does not undermine the fact that it was the de facto government as it was in actual control of the area and population. At no stage was there any actual armed conflict in that part of Afghanistan. Furthermore, since the Taliban regime was an Afghanistan regime, it cannot be said that the area was under belligerent occupation, as the latter requires the occupation of foreign territory by one belligerent group. The conflict at the time of the destruction of the Bamiyan Buddhas would best be characterised as a non-international armed conflict, for which no belligerent occupation can exist. Francioni and Lenzerini, conscious of the objections that could be raised to the characterisation of the conflict as an armed conflict, simply argue that ‘the universal value of cultural heritage seems to exclude such a conceptual discrimination’.270 This is supported by reference to the fact that principles of humanitarian law, originally meant for armed conflicts, have been extended to civil wars, ethnic conflicts and conflicts of a non-international character. While this is true, these extensions have been made in the contexts of the protection of cultural heritage in an actual armed conflict, where, essentially the heritage is caught between two warring groups. This is not the case in the destruction of the Bamiyan Buddhas. Simply asserting that armed conflict exists in one part of a State would not then justify the imposing of the customary international law rules applicable to armed conflict to all parts of that State and to all cultural heritage in that State.

268 O’Keefe (2004) op. cit., p. 195. 269 Only Pakistan, Saudi Arabia and the United Arab Emirates recognised the Taliban as the legitimate de lege government of Afghanistan. 270 Francioni and Lenzirini (2003) op. cit., p. 637. See also F. Lenzerini, ‘The UNESCO Declaration Concerning the International Destruction of Cultural Heritage’ (2003) 13 The Italian Yearbook of International Law 138.

World Heritage Convention 281 Afghanistan became a party to the World Heritage Convention in 1979, but had no World Heritage sites inscribed on the World Heritage List.271 Concern for the safety of the non-Islamic cultural heritage of Afghanistan has been raised prior to the destruction of the Bamiyan Buddhas. Not only had concern been expressed a number of times in numerous UN General Assembly resolutions272 but the World Heritage Committee had, in December 1997, unanimously adopted a resolution, which stated: ‘The World Heritage Committee … reaffirms the sovereign rights and responsibilities, towards the International Community, of each State for the protection of its own cultural and natural heritage … . Invites the authorities in Afghanistan to take appropriate measures in order to safeguard the cultural and natural heritage of the country’ and ‘[f]urther Invites the authorities in Afghanistan to co-operate with UNESCO and the World Heritage Committee with a view to ensuring effective protection of its cultural and natural heritage…’.273 Importantly, the language used in the Resolution does not suggest that the Taliban had any international law duty not to destroy the Buddhas. The language lacks any normative content and appeals for co-operation as a solution. Reaction to the destruction incited further resolutions. The General Assembly of State Parties to the World Heritage Convention adopted a resolution on the protection of the cultural heritage in Afghanistan, and in particular, condemned the wilful destruction of the Bamiyan Buddhas as a crime against ‘the common heritage of humanity’.274 The General Conference of UNESCO followed this by adopting a resolution entitled ‘Acts constituting a crime against the common heritage of humanity’, which condemned the destruction of the Buddhas.275 Similar condemnation came from regional groupings, including the European Union and the member States of the Organisation of the Islamic Conference, as well as from a number of individual States, including France, Germany, Australia, India, Japan, Iran and Pakistan.276 Importantly, with the exception of a statement made by the Ukraine, none of the condemnations, whether emanating from an individual State or from the UN or UNESCO, mentioned the World Heritage Convention and a possible breach of that Convention by Afghanistan.277 Whilst UNESCO made considerable efforts to try to dissuade the authorities in Kabul from destroying the Buddhas, it clearly

271 272 273 274 275 276 277

Having ratified the Convention on 20 March 1979. See for a detailed discussion O’Keefe (2004) op. cit., pp. 197–8. UNESCO Doc WHC-97/CONF.208/17, 27 February 1998, par. VII.58. UNESCO Doc WHC-01/CONF.208/23, October 2001. UNESCO Doc 31C/Res 26, November 2001. O’Keefe (2004), op. cit., pp. 198–202. Ibid., p. 198.

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highlighted the powerlessness of UNESCO to address the destruction of cultural heritage wholly within the remit of the territorial States. This may have been in part because the Buddhas were not inscribed on the World Heritage List. The fact that the Taliban regime was the de facto government, and not the recognised government of Afghanistan, did not prevent that regime from nominating the site for inscription on the World Heritage List since article 11(3) provides that while the ‘inclusion of a property in the World Heritage List requires the consent of the State concerned’ the inclusion of such property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute’.278 Of course, it reveals, in stark contrast, the problems that arise when the interests of the de facto national Government and the ‘international community’ conflict, and underscores the limitations inherent in the regime that vests the ability to nominate a cultural heritage site only in the territorial State. Nevertheless, as a State Party, Afghanistan was under the duties set out in articles 4, 5 and 12 of the Convention. Francioni and Lenzirini argue that the combination of articles 4 and 12 imposes a duty on Afghanistan to protect the Buddhas and that the ‘wanton destruction of the great Buddhas is inconsistent with the letter and spirit of the 1972 Convention’.279 This, however, would be an extreme interpretation of the duties imposed upon States and inconsistent with the primacy of the territorial State that underpins the conventional regime. Since clearly the de facto regime had not determined the cultural heritage to be of outstanding universal value, it cannot be that the international community can effectively, and contrary to article 4, assert its determination in the place of that of the territorial State. This highlights the nature of the obligations in article 4, described as ‘a sort of moral commitment that should be respected’, but which does not amount to a mandatory obligation.280 Until such time as a State has fulfilled its moral duty to identify cultural heritage of outstanding universal value, it is difficult to hold that State to any other protective duty in relation to that heritage. Finally, the possibility arises that the destruction of the Buddhas might consist of a contravention of customary international law applicable to the protection of cultural heritage, other than that applicable during armed conflicts. This possibility is rejected by O’Keefe, who points out that, while roundly condemned as ‘acts (or even crimes) against the common heritage of humankind’, none of the reactions to the destruction from either individual States, the UN or UNESCO suggest that the destructive act was considered to be contrary to customary

278 Similarly, the fact that the Taliban was not the recognised government of Afghanistan would not prevent the imposition of sanctions against Afghanistan as a State. Francioni and Lenzirini (2003) op. cit., p. 630. 279 Ibid., p. 631. 280 Lenzirini, op. cit., p. 348.

World Heritage Convention 283 international law.281 Francioni and Lenzerini, however, not only contend that such a customary international norm exists, but that it is a customary norm erga omnes, that is an international obligation owed to all States.282 This, however, is a questionable conclusion, and the reference to the main UNESCO Conventions and Recommendations provides limited support for this assertion. Whilst this appears to leave a State free to damage or destroy cultural heritage in its territory without fear of sanction, this is not necessarily the case. While the destruction of the Bamiyan Buddhas was not, therefore, a violation of an international norm, the acknowledgment that the ‘international community’ has some inchoate interest in the cultural heritage considered to have outstanding universal value, justifies diplomatic condemnation in the face of such damage or destruction. Such condemnation diplomatically, and, importantly, within the international organs of the UN and UNESCO, is not, therefore, an impermissible intervention in matters which are essentially within the domestic jurisdiction of that State.283 The state of customary international law in relation to cultural heritage such as the Bamiyan Buddhas is summarised by O’Keefe as follows: it cannot be concluded that a State currently owed obligations to the international community as a whole in respect of cultural heritage situated on its territory, the international community as a whole, jointly and severally, is permitted by general international law to subject a State’s peacetime treatment of such heritage to scrutiny, comment, and where appropriate, criticism.284 In 2003, the ‘Cultural Landscape and Archaeological remains of the Bamiyan Valley’ was added to the World Heritage List. The listing illustrates the overlapping nature of the criteria used by the Committee to determine the sites’ outstanding universal value, with five of the six criteria being applicable. The Statement of Outstanding Universal Value declares: Criterion (i): The Buddha statues and the cave art in Bamiyan Valley are an outstanding representation of the Gandharan school in Buddhist art in the Central Asian region. Criterion (ii): The artistic and architectural remains of Bamiyan Valley, and an important Buddhist centre on the Silk Road, are an exceptional testimony to the interchange of Indian, Hellenistic, Roman, Sasanian influences as the basis for the development of a particular artistic expression in the Gandharan school. To this can be added the Islamic influence in a later period.

281 282 283 284

O’Keefe (2004) op. cit., p. 205. Francioni and Lenzirini (2003) op. cit., p. 634. O’Keefe (2004) op. cit., p. 206. Ibid., p. 207.

284

World Heritage Convention Criterion (iii): The Bamiyan Valley bears an exceptional testimony to a cultural tradition in the Central Asian region, which has disappeared. Criterion (iv): The Bamiyan Valley is an outstanding example of a cultural landscape which illustrates a significant period in Buddhism. Criterion (vi): The Bamiyan Valley is the most monumental expression of the western Buddhism. It was an important centre of pilgrimage over many centuries. Due to their symbolic values, the monuments have suffered at different times of their existence, including the deliberate destruction in 2001, which shook the whole world.285

In light of the failure of the international community to prevent the destruction of the Bamiyan Buddhas, UNESCO convened a series of meetings that led to the adoption, in 2003, of the Declaration Concerning the Intentional Destruction of Cultural Heritage. Set in the context of the principles that underpin the protection of cultural heritage in times of armed conflict, as well as those that apply in times of peace, the Declaration sets out measures that a State should take to combat the intentional destruction of cultural heritage. These include: taking all appropriate measures to prevent, avoid, stop and suppress acts of international destruction of cultural heritage, wherever such heritage is located; adopting appropriate legislative, administrative, educational and technical measures to protect cultural heritage; and to endeavour, by all appropriate means, to ensure respect for cultural heritage in society. The preface to each measure is that States Parties should take such measures, rather than shall or must take such measures, underpinning the non-binding international nature of the instrument. Indeed, specifically identified as a measure, States should take to become a party to international conventions such as the 1954 Convention, thus becoming bound by norms that the Declaration could not create.286 The creation of a non-binding instrument illustrates the paucity of international norms that could have been asserted to protect and prevent the destruction of the Bamiyan Buddhas.287 Had such norms existed, there would have been no need for such a Declaration. Nevertheless, the Declaration calls attention to the plight of cultural heritage such as the Bamiyan Buddhas, and it may well be the beginning of what might eventually evolve into a binding international convention or the development of customary international law.

285 www.UNESCO.org 286 2003 Declaration Concerning the Intentional Destruction of Cultural Heritage, articles III(4) and IV. 287 See Carducci, op. cit., p. 130. For a contrary view, see Lenzerini (2003) op. cit., p. 141.

World Heritage Convention 285

The future of the Convention Like all international conventions, the World Heritage Convention is a product of its time. It was a response not only to the experiences of the Second World War, but to the rapidly changing social, economic and political world of the 1960s, particularly with the emergence of new States from colonial rule. Within this Western and European dominated arena, underpinned by traditional views of State sovereignty, some of the Convention’s arguably dated structure was forged. The Convention, however, unlike many other cultural heritage conventions, is capable of considerable evolutionary change. Through evolving criteria used to determine outstanding universal value, the setting of new Strategic objectives, such as facilitating greater involvement of local communities with World Heritage, and by giving effect to a Global Strategy with regard to the composition of the List itself, the Convention is capable of adapting to meet changing views of the nature of the world heritage. This ability to evolve, however, is set in a political context, and inscription is a politically charged issue. The success of the convention, with an ever growing number of World Heritage sites and in a greater number of States Parties, is beginning to show signs of ‘institutional fatigue’.288 With 878 World Heritage sites, the institutional structure is no longer able to provide the same level of support, and will progressively decrease as new sites are added. The access to support from the Fund has proved to be a major attraction for States to become a party to the Convention, particularly developing States, but as this progressively diminishes in relation to the number of World Heritage sites requiring assistance, so this incentive will wane. The attempt to slow the growth in the List also has repercussions for the future. The decision to limit the number of new sites to a maximum of 45 each year, and the strategy of encouraging States with a significant number of heritage properties to slow down, or suspend, their rate of nominations for properties to the List, may also have a detrimental affect. The risk arises that many of the European States will lose interest in the Conventional regime if new properties cannot easily be added, with the result that funds, as well as expertise and experience, may be withdrawn. It might also mean that a new property of outstanding universal value in such a State will, despite its value, not be added to the List. With 186 States Parties to the Convention, with World Heritage sites in 145 of these States, the reality of World Heritage has been brought home to governments and the people of each State, and become a component in the daily lives of millions of people. With this success, and ‘living’ World Heritage, comes the opportunity for a shift in the notion of international co-operation that is needed to ensure the Convention’s future. The notion of the centralised, co-ordinated protective regime, in the form of the Committee and World Heritage Centre, needs to make way for a regime that is supported to a greater extent by civil society – by the people of each States, and particularly by the business community. This new

288 Francioni and Lenzirini, op. cit., p. 410

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notion will, in a sense, revert to the idea of the ‘world heritage trust’ so that a greater part of the burden of world heritage management is met by a larger number of entities, rather than the one centralised entity in the form of the Committee and World Heritage Centre.

Conclusion If one evaluates the success of a Convention by the numbers of States Parties, by the number of sites nominated, and inscribed, on the World Heritage List, and by the awareness of the peoples of the world of the concept of a World Heritage and its protective status, then the Convention has been an outstanding success.289 While the creation of a ‘world heritage’ required a delicate balance between national sovereignty and international intervention, the Convention’s success has much to do with the fact that territorial State’s sovereignty was given full respect and a primary role in the protection regime, and which embodies modest international obligations. Whilst it ‘does not establish a specific regime of protection’, nor ‘add a supranational legal layer to national regulations’, it is ‘a text designed to incite action rather than to prescribe action’.290 As such, it has been described as having a ‘non-contentious’ character,291 steeped as it is in the sovereignty of the territorial State. There is, however, an interest in World Heritage by other States that make up the international community. This collective interest of humanity therefore ‘assumes the good faith and the goodwill of the individual States Parties’.292 Whilst this does create a degree of tension, it does not necessarily give rise to competing or opposing objectives, and the Convention itself is the mechanism to ensure that a proper balance between the objectives can be achieved.293 In a broader context, the Convention contributed a number of significant principles to the development of an international law of cultural heritage. By addressing not only cultural heritage but also natural heritage, it recognises the very close links between the two concepts, a recognition that man and his creations are as much a product of nature as that which was created and has evolved without our species’ interference.294 It also introduced the notion of a world heritage – of collective and public interest in the heritage of all humankind.

289 290 291 292

Francioni and Lenzirini, op. cit., p. 401. Musitelli, op. cit., p. 324. Simmonds, op. cit., p. 254. Scovazzi, op. cit., p. 172. Tension was certainly evident in relation to a number of world heritage properties, including Kakdu National Park in Australia, Machu Picchu in Peru, Cologne Cathedral in Germany, Whale Sanctuary of El Vizcaino in Mexico, and the now delisted Arabian Oryx Sanctuary in Oman. 293 Buzzini and Condorelli, op. cit., p. 179. 294 Francioni, op. cit., p. 5.

6

Underwater cultural heritage

Introduction For as long as humans have sailed the oceans their craft have sunk beneath them, leaving valuable traces of their existence as their legacy to later generations. Estimates of the number of ships lost at sea are staggering. Bascom estimates that as many as three hundred thousand ships have been lost per century. 1 Underwater cultural heritage does not only cover shipwrecks, but includes, as the term suggests, any cultural heritage which happens to be underwater. Rising sea levels have submerged ancient cities, ports, prehistoric cave dwellings, and ancient landscapes. This is particularly the case for sites that once nestled the shorelines, such as fish traps, boat building yards, jetties and piers. With increased developments in our capabilities to enter onto and under the water, and to exploit the resources of the oceans and the seabed, this valuable but limited historical and archaeological resource has been exposed to risk of damage and destruction. Coastal development, fuelled by pressures of urban expansion and resource exploitation, has generated harbour dredging, land reclamation schemes and port developments that have obliterated underwater cultural heritage. Activities in deeper water, such as pipeline construction, deep seabed mining and oil and gas exploration, as well as fishing activities, particularly beam trawling, are increasingly destroying underwater cultural heritage. While these activities destroy or damage underwater cultural heritage, most cases are unintentional and occur without those undertaking the activity necessarily being aware of the underwater cultural heritage’s existence until it is too late. Other activities, however, are consciously directed at this heritage. Most notable are the activities of salvors or ‘treasure hunters’. Many objects lost to the oceans not only reveal important information about humans’ past but continue to be economically valuable. Gold bullion, jewels, rare coins, fragile porcelain and rare antiquities have all been recovered from historic shipwrecks. The risk arises that underwater cultural heritage will be recovered in a manner which ignores the important archaeological,

1 W. Bascom, Deep Water, Ancient Ships, London: David and Charles, 1976, p. 72.

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cultural or historical value of an historic wreck, and concentrate only on exploiting its economic potential. Seafaring, by its very nature, often involves international travel, during which a vessel from one State or nation may pick up cargoes, passengers and even crew from other States during her voyage. The complex remains of a shipwreck may therefore contain artefacts from a number of States or nations, yet the story and archaeological and historical information it can yield is distinctly international. In the case of an ancient vessel, it is often extremely difficult to determine the origin of either the vessel or her cargo. Bass, for example, notes that, in the case of the thirty-one centuries old Cape Geladonya wreck off the coast of Turkey, scholars cannot agree on the origin of the wreck or its cargo, ‘some holding that it is Syrian, other that it is Greek, and still others that it is either Cypriot or of mixed nationality’.2 Whilst these vessels may flounder in international waters, they are more often than not wrecked on or off a coast, which might be that of a State with no cultural connection to the vessel at all. Claims by that coastal State will further confuse matters in cases of return or restitution. The legal regime that developed from antiquity to regulate the recovery of underwater finds is the law of salvage. It is designed to encourage the recovery of things lost at sea by awarding a generous salvage award to the salvor, paid by the owner in return for the lost property. Where no owner is known, the law of finds may award the recovered property to the finder. The policy underpinning the laws of salvage and finds is to return lost property back into the stream of commerce, maximising the economic potential of that property. Legal questions concerned issues of ownership and the quantum of the salvage award, and no account was traditionally taken of the historic or archaeological value of the wreck or recovered artefacts. With the development of the science of underwater archaeology, the ability of salvage law and the law of finds to address this new concern has been questioned, and has led to changes in the application of salvage of law, and in some cases, its abandonment. Whether salvage law or some other regulatory system is imposed depends on where the underwater cultural heritage is located. The oceans are not easily demarcated into boundaries, but from the beginning of the age of exploration, States have sought to control parts of the oceans as if it were their territory. These territorial claims have now, to a large extent, been settled with the adoption, in 1982, of the United Nations Convention on the Law of the Sea (UNCLOS). This ‘constitution of the oceans’ divides the sea into various maritime zones within which the degree of State control varies. In the territorial waters of the coastal State, that State alone determines the legal and regulatory regime applicable to underwater cultural heritage. As the importance of the historical and archaeological value has increasingly been recognised, so States have taken different, often diverging, paths to protect and regulate cultural heritage in their waters. Beyond the territorial sea, however, no one State can exclusively control the oceans and

2 G.F. Bass, ‘Marine Archaeology: A Misunderstood Science’ (1980) 2 Ocean Yearbook 137, 151.

Underwater cultural heritage 289 cultural heritage found therein. While this ocean space is governed generally by UNCLOS, other international conventions address specific matters requiring a more detailed international regime. In 1989, the International Salvage Convention was adopted to address salvage, and in 2001 the Underwater Cultural Heritage Convention was adopted to address the protection of the underwater cultural heritage.3 This Convention came into force in January 2009.

From salvage to underwater archaeology Beginnings The loss of valuable cargo, as well as vessels themselves, prompted attempts at recovering this lost wealth, and the development of a system of rewarding those who were able to recover such property for the benefit of its owner. Early recovery techniques were limited to the use of nets and grappling hooks, and in calm shallow waters, the use of free divers. By 500 BC, a system of encouraging the recovery of lost vessels and their cargo was established in the form of the Rhodian Maritime Code, which applied in ancient Greece.4 This concept of a salvage reward was adopted into Roman law and subsequently into a number of Maritime codes of the Middle Ages, such as the Consolato del Mare, the Laws of Oleron, The Visby Town Law and the code of the Hanseatic League. The general principle embedded in these maritime laws was to reward the salvor a portion of the value of the recovered material, with a higher award being made for recoveries from deeper waters, reflecting the danger the salvor was exposed to and the level of skill shown by such a recovery. For example, a Byzantine version of these early maritime codes granted a salvor a third of salvaged goods if the recovery was made in waters less than 15 m, and a half share if it exceeded this depth.5 Similarly, the Laws of Oleron decreed that ‘if a ship be surprised by sea with whirl winds, or be shipwrecked any person saving anything from the wreck, shall have one-fifth of what he saves’. Whilst almost all recovery attempts were prompted by economic concerns, some isolated examples of non-commercial interests in wrecks began to develop. In 1446, for example, Leon Battista Alberti, and later, his successor, Francesco Demarchi, recovered material from two ancient Roman vessels lying at the bottom of Lake Nemi in Italy for their historical interest.6 The desire to harvest the resources of the seabed, recover material lost in shipwrecks, and satisfy scientific curiosity eventually led to the development of better methods of accessing the underwater world. In the seventeenth century, brass

3 For a more detailed account of the Convention, see C. Forrest, ‘A New International Regime For The Protection of Underwater Cultural Heritage’ (2002) 51 International and Comparative Law Quarterly 511. 4 J. Reeder (ed.), Brice on Maritime Law of Salvage, London: Sweet & Maxwell, 2003, p. 6. 5 J. Blot, Underwater Archaeology: Exploring the World Beneath the Sea, London: Thames and Hudson, 1995, p. 4. See also Reeder, op. cit., p. 268. 6 Blot, op. cit., p. 14.

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diving bells were constructed and in the eighteenth century, airtight barrels, many with glass face plates, were used together with the traditional grappling hooks and nets. While this technology was utilised mainly to recover recently lost ships and their cargo, and was governed by the law of salvage, some attention was paid to older wrecks. In the early 1800s, for example, the Dean brothers, John and Charles, recovered artefacts and artillery pieces from the wreck of the Mary Rose, King Henry XIII’s flagship, which had sunk off Portsmouth in 1545. They were entitled to keep part of the recovered material, which included a number of intact bottles, iron and granite shot and warrior’s bows, which they sold at auction in 1840.7 The recovery of material of some vintage was, however, rare, and often the result of chance finds rather than design. This was particularly so in the Mediterranean. From about 1800, Greek sponge divers and fisherman began to recover material of considerable antiquity, including some of the finest examples of classical bronze statutes from the Mediterranean. For example, in 1812 a fisherman netted a fifth century BC bronze statue cast by the lost wax process. Known as the Piombino Apollo, this important statue now stands in the Louvre in Paris. The invention of the copper hard-hat diving helmet by Augustus Siebe in the nineteenth century revolutionised diving. The hard-hat diving suit went virtually unchanged for over a century, allowing unprecedented access underwater. At this time, interest in shipwrecks for their historic and archaeological value was largely unknown. This was particularly so in Northern Europe, where this diving technology was employed solely to retrieve cargo from known wrecks.8 In the Mediterranean, however, this new diving technology was utilised not only to recover cargo from shipwrecks, but also to harvest underwater resources such as sponges. Such activity brought divers into contact with unexpected finds. In 1900, Greek sponge divers discovered a wreck at Antikythera, near Crete. They recovered not only a number of amphora dating from between 80 and 70 BC, but also a number of rare bronze and marble statues, including a bronze of a young man dating from 340 BC and the head of a bearded philosopher from the third century BC.9 Similar chance finds were made by sponge divers near Mahdia, in Tunisia. There, a number of artefacts and marble pillars, dating to the first century BC, were initially recovered and eventually made their way onto the antiquities markets. For the first time, a State took a direct interest in the recovery and intervened to preserve recovered artefacts for the benefit of the nation. Following this initial find, the Tunisian government launched its own recovery operation,

7 8

A. McKee, How we found the Mary Rose, London: Souvenir Press, 1982, pp. 37–42. T. Maarlveld, ‘Archaeological heritage management in Dutch waters: exploratory studies – cultural and legislative perspectives’ in L.V. Prott, E. Planche and R. Roca-Hachem, Background Materials on the Protection of the Underwater Cultural Heritage, Volume 2, Paris: UNESCO Publishing, 2000, p. 209. 9 Blot, op. cit., pp. 32–3; see also Bass, op. cit., p. 137; J.P. Delgado (ed.), Encyclopaedia of Underwater and Maritime Archaeology, London: British Museum Press, 1997, pp. 31–2; J.N. Green, Maritime Archaeology: A Technical Handbook, Boston: Elsevier Academic Press, 1990.

Underwater cultural heritage 291 not to supply the antiquities market, but to enable the finds to be placed in a State museum.10 While divers had begun searching Swiss lakes for Bronze Age relics and evidence of lakeshore dwellings from the early 1800s, little attention had been paid to such searches offshore, and recovery operations such as that undertaken in Tunisia were rare. Any attention paid to wrecks that might have an historic or archaeological value was nevertheless motivated by commercial interests, exemplified by Hippolyte Magen’s investigation of a number of Spanish galleons lying off Vigo in Spain. Motivated by rumours of great riches having been on board, Magen launched a recovery operation in 1868. No riches were found other than a little sailors’ money, and the large number of anchors, cannons and exotic wood recovered was sold primarily for its commercial value.11 The nascent discipline of underwater archaeology12 The finds of ancient material, particularly in the Mediterranean, were sporadic and mostly fortuitous, and although of archaeological and historical interest, did not give rise to any systematic enquiry. There was, however, a growing interest not only in the recovered material, but also in the vessels that carried them. In most cases, however, recovered material was limited to the cargo, with little wooden remains surviving. When remains of the vessel did survive, they were seldom recovered since they were of little commercial value. Interest in ships and ship building therefore developed from remains recovered in terrestrial sites. The systematic study of ancient boats, rather than their cargoes, began with the publication in 1865 of the find of the Nordic Iron Age clinkerbuilt boats at Nydam by Conrad Engelhardt. Subsequent important terrestrial finds included the early Anglo-Saxon ship buried at Sutton Hoo cemetery, Suffolk, England13 and the early tenth-century viking ship buried near Gokstad, Norway.14 This interest spread with the increasing discovery of underwater remains, and terrestrial archaeologists began to pay increasing attention not only to material recovered from underwater sites, but also to the sites themselves. In 1955, the first underwater archaeological conference was held in Cannes, France. At that conference, one of the major problems with underwater excavation was identified: archaeologists did not dive, but tended only to supervise diving operations from the surface. This had been the case in the recovery by a salvage company of a First Century BC Roman merchant vessel off Albenga, Italy, under the supervision of the Italian government archaeologist, Nino Lamboglia. The salvage divers damaged the amphorae during the recovery and made little attempt to preserve or

10 Blot, op. cit., p. 35. 11 Blot, op. cit., pp. 29–30. 12 For more on the history and development of underwater archaeology, see G.F. Bass, Archaeology under Water, Harmondsworth: Penguin Books, 1966; P. Throckmorton, The Sea Remembers: Shipwrecks and Archaeology, London: Mitchell Beasley, 1987. Blot, op. cit. 13 Delgado, op. cit., p. 411. 14 Ibid., p. 172.

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record the artefacts’ contextual relationships, much to Lamboglia’s frustration. This problem was easily overcome when the self-contained underwater breathing apparatus (SCUBA), invented in the 1940s, became commercially available. SCUBA made underwater exploration accessible to all. In 1960, George Bass became the first archaeologist to learn how to dive and, in co-operation with Peter Throckmorton, began the excavation of a late bronze age wreck (approximately 1200 BC) off Cape Gelidonya, Turkey.15 Underwater archaeology, as a scientific discipline, had emerged in the Mediterranean. However, the advantages of SCUBA meant that an increasing number of sports divers were gaining access to wrecks. At the same time, professional salvage companies began to specifically target historic wrecks for recovery using all the new diving technologies at their disposal, including not only SCUBA, but also the use of prop washers, sonar and underwater metal detectors. Very quickly recovery operations could be divided into those which were archaeological excavations in the strict sense and those that were salvage operations. Examples of the former have steadily grown since the excavation of the Cape Gelidonya wreck in the 1960s. The excavation of the Mary Rose, beginning in the late 1960s, and culminating in the remarkable raising of the hull in 1982 stands as a pivotal point in the development of underwater archaeology. Similarly, the raising of the Swedish man of war Vasa, sunk in 1628 and raised in 1961, is perhaps the last we will see of a wreck recovered whole rather than excavated underwater. In Canada, the excavation of a sixteenth–century Spanish galleon in Red Bay, Labrador, reflects further developments in sound archaeological practice, and in this case, an example of in situ preservation, with large parts of the wreck conserved underwater for the benefit of further investigation by future generations.16 Underwater archaeological excavations that stand as examples of sound scientific practice can be found in many different States. In Australia, it includes the excavation of the Batavia, a Dutch East Indiaman that sank in 1629, and the British warship HMS Pandora, sunk in 1791, in Scotland, the Duart wreck and in England, the Dartmouth, sunk in 1690. Other examples of sound archaeological practice include the excavation of the Yassiada wreck in Turkey, and the Viking ships off Skuldelev in Denmark.17 The continued application of salvage law A very different picture emerges from a number of other recovery operations which exhibit questionable archaeological practices, if any at all; motivated as they are by the economic value of the recovery of the artefacts. Historic shipwrecks lying in various parts of the world have yielded significant commercially valuable artefacts. Off the coast of Spain, coins raised from the wreck of the

15 Throckmorton, op. cit., pp. 24–32. 16 Delgado, op. cit., p. 336. 17 P.J. O’Keefe, Shipwreck Heritage: A commentary on the UNESCO Convention on Underwater Cultural Heritage, Leicester: Institute of Art and Law, 2002, p. 7.

Underwater cultural heritage 293 Duoro were sold for £1.5 million.18 Similarly, the recovery of material from the Cazador yielded $50 million,19 the Diana, £1 million,20 and the Geldermalsen $15 million. Not all salvage is undertaken by private individuals. The Vietnamese State owned salvage company Visal, together with a private salvor, recovered significant quantities of Chinese porcelain from a junk that had sunk in 1690, which was subsequently sold at auction by Christie’s Amsterdam for $7 million.21 In many of these cases, the wreck and many artefacts have been destroyed through inappropriate recovery techniques or because they were less valuable than other items of the wreck, and therefore considered disposable.22 Some recovery operations, motivated by fables of riches, resulted in considerable damage to the wreck and its archaeologically or historically valuable artefacts without ever finding any of significant monetary value. The recovery of the HMS de Braak, sunk in 1798 in Delaware, motivated by a belief that treasure lay beneath the wreck’s hull, stands as ‘a worst-case scenario’ of the recovery of underwater cultural heritage in the US. Recovery operations undertaken by treasure salvors which seek investors’ funds to undertake the operation on the promise of fortunes being found continue. For example, the recovery of artefacts from the Hanover, reported to be worth £50 million, has yet to materialise.23 This ‘treasure salvage’ is not restricted to professionals, and sports divers and amateur treasure hunters continue to discover and recover historic artefacts, many of which are simply sold without any recourse to salvage law or the law of finds. Much of this illicit material can be bought through the internet. The recovery of historic wreck, particularly in international waters, is largely undertaken by the well-equipped and extensive US professional salvage industry, as well as from the UK. In many cases, recovered artefacts are often sold on the art and antiquities market in New York and London. The common law principles of salvage have therefore dominated legal issues arising from the recovery of

18 ‘Mint Duoro coins draw the bidding’, Diver Magazine, January 1997, p. 46; ‘Golden treasure from shipwreck to fetch £1.5m’, The Times, 7 September 1996, p. 11. 19 ‘Ten days on the Cazador’, Diver Magazine, June 1996, pp. 86–9. 20 ‘Shipwreck gives up her hoard of perfect porcelain’, The Times, 25 January 1995, p. 4. 21 N. Pickford, The Atlas of Ships Wrecks and Treasure, London: Dorling Kindersley, 1994, p. 28. 22 Similar concerns regarding a number of other historic shipwrecks have been voiced. See Anon, All at Sea and Undefended (1994) 6 British Archaeology News with regard to the discovery of the Albion (1765) and Hindustan (1803) in the UK. See also T.T. Stevens, ‘The Abandoned Shipwreck Act of 1987: Finding the Proper Ballast for States’ (1992) 37 Villanova Law Review 573, 577, with regard to the eighteenth-century British frigate DeBraak, recovered off the coast of Delaware, and the US Civil War wreck, the New Jersey, and testimony by W. Cockrell, ‘Underwater Archaeologist for the State of Florida before the Committee on Oceanography, July 15, 1982’ (1983) 10 Journal of Field Archaeology 112 with regard to the destruction of the San Jose, a vessel from the 1733 Spanish Plate Fleet lost off the Florida Keys. See also E. Herscher, ‘Hearings Held on Historic Shipwreck Legislation’ (1984) Journal of Field Archaeology 79, 84 with regard to the wreck of the Espiritu Santo (1554) off the coast of Texas. 23 See ‘Wreckfinder hits £50 m crock of gold’, Sunday Times, 27 October 1996, p. 11; ‘Will the Hanover yield a fortune in gold?’, Diver Magazine, December 1996, p. 59; ‘Hanover – is the treasure still on board?’, Diver Magazine, January 1997, p. 47.

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historic wreck. However, while this salvage law has its roots in the international maritime law of past ages, it is a national law which is peculiar to each jurisdiction.24 Salvage law may therefore differ between States. Nevertheless, the common law of salvage, as applied in the US and UK in particular, will be addressed in the main here given that it has been the activities governed by this law which galvanised action to address the protection of underwater cultural heritage. While a number of wrecks have yielded significant artefacts of both archaeological and economic value, a number of wrecks and their salvage have exemplified the problems of protecting important archaeological sites, particularly those that lie in international waters, and illustrate the issues arising under the common law of salvage which have concerned States. A closer examination of a few of the most notable wrecks and their salvage provides a backdrop to the negotiations to adopt the Underwater Cultural Heritage Convention. The Nuestra Señora de Atocha Fables of treasure wrecks abounded in the Florida Keys, and the easy availability of SCUBA in the affluent US prompted many amateur ‘treasure hunters’ to seek out these riches. After some early fortuitous finds, a number of divers took up the search for and recovery of historic wreck as a profession. This included Kip Wagner and Mel Fisher, who made spectacular finds of gold and silver from the 1715 Spanish Plate Fleets wrecked off the coast of Florida. In 1971, Mel Fisher’s company Treasure Salvors, Inc. located the wrecks of the Nuestra Señora de Atocha and the Santa Margarita, Spanish galleons that sank off the Marquesas Keys in Florida in 1622.25 However, no sooner had these finds been made, than the first protracted legal battles began.26

24 See S. Dromgoole (ed.), The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001, Leiden: Martinus Nijhoff Publishers, 2006 for a discussion of the salvage law and protection of underwater cultural heritage in a number of States, including China, Finland, France, Greece, Ireland, the Netherlands, Norway, Poland, South Africa and Sweden. 25 On the excavation of the wreck of the Nuestra Señora de Atocha and Santa Margarita, see R.D. Mathewson, Archaeological Treasure: The Search for the Nuestra Señora de Atocha, Woodstock: Seafarers Heritage Library, 1983; J. Smith, Fatal Treasure, Hoboken New Jersey: Wiley & Sons, 2003. 26 For a discussion on the plethora of litigation following the discovery of these wrecks, see A. Korthals-Altes, ‘Sunken Spanish Treasure in Anglo-American Law’ (1989) 11 Derecho Commercial Comparado Trabajos en Homenaje a Ferran Valls I Taberner 3125; D.A. Balinsky, ‘Recent Developments: Treasure Salvors, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, Etc., Atocha’ (1979) 5 Brooklyn Journal of International Law 178−190; O.J. Alpizar, ‘Sovereign Rights and Sunken Treasure’ (1977) 7 Capital University Law Review 75; J.S. Butler, ‘Recent Developments − Admiralty Salvage Rights − Sovereign Claim on the Outer Continental Shelf do not extend to Abandoned Vessels’ (1977) 7 Georgia Journal of International and Comparative Law 169; B. McDonald, ‘Admiralty Salvage − The United States has not asserted Sovereign Prerogative over Abandoned Property on Outer Continental Shelf’ (1976) 4 Florida State University Law Review 561; J.A. DeLanis, ‘Jurisdiction − Continental Shelf − Abandoned Vessel Salvaged from the Surface of the United States Continental Shelf beyond territorial waters is not under jurisdiction of United States Government’ (1976) 9 Vanderbilt Journal of Transnational Law 915.

Underwater cultural heritage 295 Originally, the salvors and the State of Florida had presumed that the resting place of the Atocha was in State waters, and subject to the administered salvage regime provided in Florida statutes. This allowed for the State to regulate the salvage operation and provided for a division of recovered material, with the State taking its choice of 25 per cent of the recovered property. Treasure Salvors, Inc. entered into a number of salvage contracts with the State of Florida pursuant to the Florida Statutes regulating underwater cultural heritage in Florida’s territorial waters. The State subsequently received its share of artefacts recovered between 1973 and 1975. However, in an unrelated case in 1975, the court held that the extent of Florida’s territorial waters had been miscalculated, and was smaller than initially envisaged.27 Consequently the resting place of the Atocha was no longer within Florida’s territorial waters, but lay in international waters. Treasure salvors, Inc. therefore regarded the salvage contracts as null and void and in 1976 initiated an in rem admiralty action in the Federal Court to establish possession and title to the Atocha on the basis of the law of finds.28 This would allow the salvors to undertake the recovery operation free of any archaeological oversight provided by the State. In order to provide some protection to the site, the Federal Government intervened and claimed title to the wreck on the basis of its sovereign prerogative, which had been codified in the Abandoned Property Act.29 The court, however, rejected this, holding that the notion of sovereign prerogative never took hold in the US and that the ‘American rule’ of finder-keepers should apply. Consequently, the Federal court vested title to the Atocha in the finders. On appeal,30 the Federal government also argued that the Atocha was not in ‘marine peril’ and therefore that salvage law should not be applied. The court, however, found that ‘[e]ven after discovery of the vessel’s location it is still in peril of being lost through the actions of the elements’.31 The salvors then attempted to have the artefacts in the State of Florida’s possession returned to them.32 The State refused to return these artefacts, and argued that any action for the return of the artefacts would amount to an action against the State that was barred by the Eleventh Amendment of the US Constitution.33 In State of Florida, Department of State v. Treasure Salvors, Inc.34

27 United States v. Florida 420 U.S. 531 (1975). 28 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 408 F.Supp. 907 (S.D. Fla. 1976). 29 For a more detailed discussion on the Abandoned Property Act, see Balinsky, op. cit., pp. 187−8. 30 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978). 31 See also Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir. 1987). 32 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 459 F.Supp. 507 (S.D. Fla. 1978). 33 The Eleventh Amendment prohibits suits against States. It states that ‘the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against the United States by citizens of another state, or by citizens or subjects of any foreign State’. 34 State of Florida, Department of State v. Treasure Salvors, Inc. 621 F.2d 1340 (5th Cir. 1980).

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the court ruled that neither the Eleventh Amendment nor sovereign immunity prohibited an action to adjudicate the State’s ownership claim. The State’s claim was then rejected and title to all the artefacts was vested in the finder.35 The ultimate result of these protracted court battles was that the law of finds, as an adjunct to the law of salvage law, was applied to the Atocha. As such, neither the State nor the Federal Government could protect the historical and archaeological integrity of the Atocha. The inherent ability of salvage law to protect the Atocha was likewise rejected by the application of the law of finds. The Geldermalsen On its return journey to Holland, having loaded a cargo of tea, spices, lacquerware, porcelain and gold at Canton, the Dutch East Indiaman Geldermalsen struck a reef in the South China Sea in January 1952 and sank. In 1985, salvor Michael Hatcher discovered the wreck in an undisclosed location, believed to be within the exclusive economic zone of Indonesia.36 The salvors recovered 160,000 pieces of export quality porcelain, 126 gold ingots, two bronze cannons, but few other artefacts. Accounts of the salvage describe the operation as ‘strip-mining’, where no account was taken of the archaeological value of the site and artefacts of little economic value were ignored or destroyed.37 The recovered porcelain was subsequently auctioned by Christie’s Amsterdam, raising approximately $10–15 million.38 Controversially, purchases of the artefacts at auction included a number of museums, including the British Museum. Unfortunately the Geldermalsen was not the only vessel recovered using this strip-mining approach by Hatcher. Before turning to the Geldermalsen, Hatcher had found a 1640 Chinese junk, from which 23,000 pieces of porcelain was recovered. A Chinese wreck of the Song Dynasty (AD 960–1368) was also salvaged. Unfortunately, when the salvage operation was completed, the salvors used dynamite to destroy the last traces of the wreck, in order to ensure that the Chinese government, on whose coastal shelf the wrecks lay, would not be able to identify the location of the wreck.39 The fate of these wrecks, particularly the Geldermalsen, has been used extensively to illustrate the manner in which valuable archaeological and historical information is lost whilst the economic value of the wreck is maximised. 40 Importantly, it also illustrates the difficulty faced by developing nations in preserving and regulating activities in their waters.

35 36 37 38 39

Florida v. Treasure Salvors, Inc. 689 F.2d 1254 (5th Cir. 1982). O’Keefe (2002) op. cit., p. 8. M. Hatcher and A. Thorncraft, The Nanking Cargo, London: Hamish Hamilton, 1987, p. 166. Pickford, op. cit., p. 74. H. Zhao, Recent Developments in the Legal Protection of Historic Shipwrecks in China (1992) 23 Ocean Development and International Law 319. 40 G.L. Miller, ‘The Second Destruction of the Geldermalsen’ in Prott and Srong, op. cit., p. 94.

Underwater cultural heritage 297 The Central America In 1857, the steamship Central America loaded a significant quantity of gold, first at Aspinwall on the Caribbean side of Panama, and then at Havana. At the time, the estimate of the gold was US$2 million; now valued at up to US$1 billion.41 This included the numismatic value of some of the rare coins found on the wreck, including the then newly minted double eagle emblem coins, valued today at up to US$8,000 each. In addition, the vessel also carried a significant number of Californian miners returning to New York with their personal gold. On the voyage to New York the vessel encountered a severe storm and began to take water. While the women, children and some male passengers were taken on board a passing vessel, the Central America finally floundered, taking all the gold and 423 lives with her. In 1987, a treasure hunting consortium, Columbus-America Discovery Group, found the wreck in international waters, lying 2,500 m deep approximately 320 km off the coast of South Carolina.42 On the wreck site, the sidewheels and engine, and some hull timbers, are prominent, while artefacts, including well preserved leather trunks and other baggage are scattered around this site. Using a remotely operated vehicle, the salvors raised a considerable quantity of the gold. Unfortunately, it is not clear how much of the other material was raised. Some care, however, appears to have been taken in raising jewellery, china, cloth,and even old newspaper and cigars. Archaeological study and documentation of the wreck would be of considerable importance as no detailed record of a Panama Route steamship of that period exists. The salvors, however, have not released an overall site map, photographs or other information regarding the wreck, and so little archaeological information can be gleaned from the salvage operation.43 This is partly due to the fact that upon discovery, protracted litigation involving a number of claimants ensued. The salvors sought to have themselves declared owners of the gold, or, in the alternative, a salvage award of US$1 billion. The insurance company that had paid for the loss of the gold, however, made an appearance in court. The Federal District court found that as the insurers appeared to have destroyed all documentation relating to the claim, they had abandoned ownership of the gold.44 In 1992, this decision was reversed on appeal by the US Court of Appeal, which then returned the case to the lower court for a determination of the salvage award.45 The salvors were awarded 90 per cent of the gold as the salvage award, while the gold that had belonged to the miners was found to

41 Pickford, op. cit., p. 94. 42 For an account of the salvage, see G. Kinder, Ship of Gold in the Deep Blue Sea, New York: The Atlantic Monthly Press, 1998. 43 Delgado, op. cit., pp. 92–4. 44 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 42 F.Supp. 1327 (E.D. Va. 1990). 45 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 974 F.2d 450 (4th Cir. 1992).

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be abandoned, and by applying the law of finds was vested in the salvors as absolute owners. In making the high salvage award, the court took into account the extent to which the salvor had taken steps to preserve the artefacts and their archaeological value, concluding that the salvors’ actions were ‘unequalled’. However, the court gave no indication as to why it thought that the salvor had satisfied the criteria of archaeological and historical protection, or on what basis the salvor should therefore receive a significant portion of the gold recovered from the wreck. While the salvor had been commended for maintaining archaeological standards maintained during the recovery by the National Marine Historic Society, the National Association of Academics of Science and the Explorers Club,46 others disagree with the extent to which the salvors had adhered to best archaeological practice.47 The Titanic The Titanic is arguable the world’s most famous shipwreck. Its sinking on 14 April 1912 had immediate international repercussions, and since her discovery on 1 September 1985, has continued to be of international importance. The wreck was discovered by a joint expedition from the US Woods Hole Oceanographic Institute and the French Governments Institute for the Research and Exploration of the Sea (IFREMER) approximately 350 nm off the coast of Newfoundland, lying on the outer edge of the Canadian continental shelf. 48 The joint expedition returned in 1986 to film and photograph the wreck, and explicitly refused to recover any artefacts, believing that the wreck should remain undisturbed as a memorial to those who had died. The US adopted the RMS Titanic Maritime Memorial Act in 1986 to give effect to this intention, though the Act also encouraged co-operation between interested States to conduct research, exploration and, if appropriate, salvage of the Titanic. However, in 1987 IFREMER, in conjunction with a US company, Titanic Ventures, undertook a further expedition, and on this occasion recovered approximately 1,800 artefacts. A further expedition was undertaken in 1993 by R.M.S. Titanic Inc (RMST), the successor in title to Titanic Ventures, recovering a further 800 artefacts. Subsequently, RMST filed a complaint before a federal District court seeking exclusive salvage rights to the wreck though it lay in international waters.49 While the site lay outside the

46 Kilder, op. cit., p. 500. See also Deep Sea Research, Inc. v. The Brother Jonathan, 883 F.Supp. 1343, (N.D. Cal. 1995) and RMS Titanic, Inc. v. Wrecked and Abandoned Vessel, 924 F.Supp. 714 (E.D. Va. 1996). 47 See P.J. O’Keefe, ‘Gold, Abandonment and Salvage’ (1994) 1 Lloyd’s Maritime and Commercial Law Quarterly 11. Stevens, op. cit., p. 580. 48 On the discovery of the Titanic, see R.D. Ballard, The Discovery of the Titanic, London: Madison Publishing, 1987; R.D. Ballard, Explorations: An Autobiography, London: Wiedenfeld & Nicolson, 1995. 49 For an overview of the litigation regarding the Titanic, see C.J.S. Forrest, ‘Salvage Law and the wreck of the Titanic’ (2000) 1 Lloyd’s Maritime and Commercial Law Quarterly 1.

Underwater cultural heritage 299 geographical jurisdiction of the court, RMST sought to invoke the court’s in rem jurisdiction by presenting a single artefact recovered from the wreck before the court. This the court considered sufficient to invoke a quasi in rem jurisdiction, allowing it to declare RMST to be salvor in possession and the ‘true, sole and exclusive owner of any items salvaged from the wreck’.50 Only one other party, Liverpool and London Steamship Protection and Indemnity Association had filed a claim asserting an interest in the wreck. Later RMST entered into a settlement agreement with the Association, and the District Court dismissed the Association’s claim.51 In 1994, RMST undertook another expedition to the wreck site and recovered further artefacts from the debris field. However, RMST’s failure to undertake an expedition during the 1995 ‘weather window’ prompted a rival salvor, Joslyn, to request a rescission of the court’s order granting RMST exclusive salvage rights on the grounds that RMST had failed to diligently salvage the Titanic, had evidenced no intention to salvage it in the future, and, at that time, was financially incapable of utilising its rights.52 The court reviewed the activities of RMST and denied this request, holding that RMST had done enough to maintain its status as salvor in possession, particularly given the short weather window. Having lost the ability to salvage the wreck, Joslyn nevertheless decided to undertake an expedition to the wreck site for the sole purpose of photographing the wreck. RMST immediately sought an injunction preventing Joslyn from undertaking this expedition. In granting the injunction, the court indicated that ‘photographs can be marketed like any other physical artefact and, therefore, the rights to images, photographs, videos, and the like belong to R.M.S. Titanic’. In 1998, the British company Deep Ocean Expeditions began marketing an expedition called ‘Operation Titanic’. This would allow members of the public to view and photograph the Titanic whilst accompanying a scientific expedition from the Russian Academy of Sciences. When RMST learned of DOE’s expedition, it filed another motion for a preliminary injunction. The court, continuing to exercise in rem jurisdiction, granted the injunction, preventing any other party from (i) interfering with the rights of RMST, as salvor in possession, (ii) conducting search, survey, or salvage operations of the wreck, (iii) obtaining any image, video, or photograph of the wreck or wreck site, and (iv) entering the wreck.53 In 2000 the court further ordered the salvor not to penetrate or cut into the Titanic, or sell any of the artefacts.54 In 2004 RMS Titanic sought to be declared owner of wreck and all the

50 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, 924 F.Supp. 714, 716 (E.D. Va. 1996). For a discussion on the ownership of the wreck and artefacts, see M.S. Timpany, ‘Ownership Rights in the Titanic’ (1986) 37 Case Western Law Review 72; D. Cyclon, “Who owns the Titanic?” (1985) 28 Oceanus 94 51 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, 924 F.Supp. 714, 715 (E.D. Va. 1996). 52 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, 924 F.Supp. 714, 716 (E.D. Va. 1996). 53 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, 9 F.Supp.2d 624, 640 (E.D. Va. 1998). 54 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, Civ. No. 2:93cv902 (E.D. Va. July 28, 2000).

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artefacts on the basis of the law of finds. This the court rejected.55 In an attempt to gain greater control over the recovered artefacts, the salvors attempted to have their status changed from salvor to finder, thereby invoking the law of finds. This the court rejected in 2006. Nevertheless, for all intents and purposes, RMST remains the salvor in possession of the Titanic.

The law of salvage and finds Historically, sunken vessels were raised solely for the purposes of reintroducing valuable items back into the stream of commerce. This was achieved through the law of salvage and finds. The policy objective underpinning the foundation of salvage law is to encourage individuals to voluntarily save lives and property at sea and to return saved property to its owner, allowing its reuse and continued economic utility. In this respect, there is no equivalent to salvage law for the rescue of property on land. The common law concept of salvage may be defined as ‘the compensation allowed to persons by whose voluntary assistance, a ship at sea or her cargo, or both have been saved in whole or in part from impending sea peril; or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict or recapture’.56 In order for salvage law to apply, a number of preconditions have to be met.57 First, the property must be ‘in marine peril’ on navigable waters; second, the efforts to rescue the property must be made voluntarily; third, there must be partial or total success in saving property; and finally, the salvage must have been conducted bona fide in the interest of the owners. If these criteria are satisfied, the court may grant a salvage award. This may take the form of a payment that reflects a percentage of the value of the recovered material, or, in some cases the recovered material itself, either in lieu of a salvage award, or by the application of the law of finds, by which the finder becomes owner. The preconditions to the application of salvage law are, however, difficult to easily apply to underwater cultural heritage, as are the associated rights acquired by the salvor in the form of exclusive salvage rights as salvor-in-possession, and the quantifying of the salvage award. Marine peril Salvage is most often sought by vessels in distress, usually vessels that have been caught in bad weather conditions or which have suffered structural or engine failure, and risk running aground or floundering. In the case of historic shipwrecks, this concept of danger has long passed, with the vessel having sunk many years

55 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, 435 F.3d 521 (4th Cir. 2006). 56 M.J. Norris, The Law of Salvage, Mount Kisco, N.Y.: Baker, Voorhis, 1958, p. 157. In this sense, salvage refers to the actual award, but it may also be used to describe the type of work undertaken in order to achieve this award. 57 Blackwall, 77 U.S. (10 Wall 1 19L Ed. 870 (1869)); The Sabine, 101 U.S. 384 (1880).

Underwater cultural heritage 301 before the salvage operation. Once sunk, however, the threat of physical destruction may continue as the vessel and its cargo begins to disintegrate from the immediate forces of nature and the inevitable degeneration over time. It may also be in danger from deliberate destruction because it is causing a hazard to navigations, or from salvors. However, the remains may reach a stage of equilibrium in the surrounding marine environment, and little or no further degradation will occur in the future.58 This is particularly so in deep water, where, due to low level of light and oxygen, organic material is often very well preserved. As such, there will no longer be a risk of physical destruction of the vessel or its cargo. However, ‘marine peril’ has been interpreted more broadly than merely the threat of physical destruction. As long as the vessel, or more commonly its cargo, might still be of economic value and be recovered, the failure to reap this value might itself be said to constitute a peril. As such the wreck may be in continuing peril to the extent that artefacts of commercial value are lost to any productive economic use. It might further be said that items of historic or archaeological importance may also be lost to social or academic use if not recovered. As long as items that remain on the seabed have some economic value, salvage operations will be encouraged. Litigation in the US has proved to be the most illustrative of the way in which courts have interpreted ‘marine peril’. In Treasure Salvors Inc.59, the court had to determine whether the wreck of the Nuestra Señora de Atocha was in marine peril for the purposes of applying salvage law. The court held that ‘marine peril includes more than the threat of storm, fire, or piracy to a vessel in navigation’. The court went on to state that if the vessel were lost, ‘[e]ven after discovery of the vessel’s location it is still in peril of being lost through the actions of the elements’.60 In Platoro Ltd., Inc. v. The Unidentified Remains of a Vessel,61 a US district court took a very wide interpretation of marine peril in relation to the remains of several Spanish vessels that had sunk off the coast of Padre Island, Texas, during a hurricane in 1555. The court held that, as a matter of law, marine peril will exist simply where a ship’s location was unknown. The physical preservation of the artefacts was therefore not a consideration in determining the existence of marine peril. Similarly, in Cobb Coin Co. v Unidentified, Wrecked and Abandoned Sailing Vessel,62 a case

58 See J. Barto Arnold III, ‘Some Thought on Salvage Law and Historic Preservation’ (1978) 7 International Journal of Archaeology 174. See also S.L. McLaughlin, ‘Roots, Relics and Recovery: What went wrong with the Abandoned Shipwreck Act of 1987’ (1995) 19 Columbia-VLA Journal of Law and the Arts 149, 182. 59 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978). 60 See also Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir. 1987). 61 Platoro Ltd., Inc. v. The Unidentified Remains of a Vessel, 614 F.2d 1051, 1055–56, (5th Cir. 1980); 1981 AMC 1087, 1102–03. 62 Cobb Coin Co. v Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 561, 557 (S.D. Fla. 1982).

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concerning the salvage of the 1715 Spanish Plate Fleet, the court stated that: ‘[b]ecause the defendant vessel was still in marine peril of being lost through the action of the elements or of pirates and was not being successfully salved when the plaintiff undertook its salvage operation, it was subject to a “marine peril” for purposes of the plaintiff’s salvage claim’.63 More recently, in Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company,64 the court concluded that ‘historically, courts have applied the maritime law of salvage when ships or their cargo have been recovered from the bottom of the sea by other than their owners’. The same approach was taken by the Puerto Rico Circuit Court of Appeal in a case involving recovery of artefacts from a seventeenth-century wreck in E.L. Soba v. Fitzgerald.65 Quite an opposite conclusion, however, was reached in Subaqueous Exploration & Archaeology Ltd. v. The Unidentified, Wrecked and Abandoned Vessel.66 The court had to determine whether salvage law was to apply to the recovery of three Spanish vessels and one British vessel of the eighteenth or nineteenth century in the State of Maryland. The court held that ‘marine antiquities which have been undisturbed for centuries’ are not proper subjects of salvage because they are not in marine peril. A more sophisticated approach had been taken, however, in Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel.67 The court acknowledged that marine peril was required for a successful salvage claim, but extended the peril to include the historic and archaeological value of the wreck. As such, the court concluded that the salvors had, by failing to take steps to preserve the archaeological and historical value of the wreck, put the wreck in greater danger than it had been when undisturbed. Since the application of salvage law in other jurisdictions is not often the subject of litigation, it is difficult to make any direct comparison, A few anomalous cases from outside the US do, however, exist. For example, in the Canadian case, Her Majesty The Queen in Right of Ontario v. Mar-Dive Corporation et al.68 the court held that a wreck embedded in the bottom of Lake Erie was not in marine peril. The court went on to note that it might, however, be in danger from the salvage activity itself, especially from the unskilled recovery of artefacts. Other States evince a broader approach by considering that historic wreck of an archaeological nature fall outside maritime law and the law of salvage, not only because they are not, in the salvage law sense, in marine peril, but also because

63 See also Wiggins v. 1100 Tons, More or Less, of Italian Marble (The Clythia), 186 F.Supp. 452 (E.D. Va. 1960); Thompson v. One Anchor and Two Anchor Chains, 221 F. 770 (W.D. Wis. 1916); Eads v. Brazelton, 22 Ark. 499 (1861). 64 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company [1995] AMC 1985, 2007 (4th Cir.). 65 E.L. Soba v Fitzgerald [1997] AMC 2254. 66 Subaqueous Exploration & Archaeology Ltd. v. The Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597, (D. Md. 1983). 67 Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1515 (11th Cir. 1985). 68 Her Majesty The Queen in Right of Ontario v. Mar-Dive Corporation et al., 1997 AMC 1000.

Underwater cultural heritage 303 their archaeological or historical importance is incompatible with the commercial nature of salvage law. For example, the Singapore High Court in Simon v. Taylor69 rejected the application of salvage law to wreck of historic importance as the operation was motivated simply by commercial interests. Similarly, the High Court of Ireland, in In Re La Lavia, Juliana and Santa Maria de la Vision70 concluded that the wreck of three Spanish vessels sunk in 1588 ‘passed out of the realms of commercial maritime law and into archaeology law long before they were found at Streedagh in 1985’.71 The courts are not alone in their disagreement on the meaning of marine peril and the consequent application of salvage law to historic wreck and commentators on the subject are equally divided.72 Whilst the burden of proving the existence of marine peril falls upon the salvor, the approach taken by the court will determine the extent to which the salvor will have to go to meet this burden. Strictly, the requisite degree of danger the salvor will have to show exists is a real and appreciable danger. It must not be merely fanciful, but need not be immediate or absolute. Should the court simply consider anything lost at sea to be in ‘marine peril’, the salvor will have no difficulty in meeting this burden. Once the existence of marine peril is established, the actual degree of peril will simply then become one of a number of factors considered in the determination of the salvage award. As the existence of a state of marine peril is a requirement for the application of salvage law, those wishing to preserve the application of salvage law to the recovery of underwater cultural heritage have advocated a broad definition of the term, which relates not only to the physical threats to the objects, but also to the loss of its economic realisation. Those wishing to remove salvage law from the realm of underwater cultural heritage have taken a narrower definition.73 An international regime for the protection of underwater cultural heritage, particularly in international waters, necessitates some clarity on this point. Voluntary efforts The requirement that the action of the salvor be voluntary encourages the saving of property in marine peril by those that have no pre-existing legal obligations in relation to the ship. It thus allows a salvor to take action to save a ship or its cargo without prior permission from the owner. This requirement is therefore related to that of marine peril. Where the danger to property is imminent, delay in its

69 70 71 72

Simon v. Taylor [1975] 2 Lloyd’s Rep. 338 (Singapore High Ct. 1974). In Re La Lavia, Juliana and Santa Maria de la Vision [1996] 1 Irish Law Reports Monthly 194. As quoted in N. O’Conner. ‘Ireland’ in Dromgoole (2006), op. cit., pp. 127 and 133. Both Brice and Owen disagree with the rulings in Subaqueous Exploration and Klein to the effect that wrecks are no longer in danger and that salvage law should not therefore apply. See G. Brice, ‘Salvage Law and the Underwater Cultural Heritage’ (1996) 20 Marine Policy 337, 339; D.R. Owen, ‘Some Legal Troubles with Treasure: Jurisdiction and Salvage’ (1985) 16 Journal of Maritime Law and Commerce 139, 145. On the other hand, Stevens argues that historic shipwrecks are not in marine peril and therefore should not be the subject of salvage law. See Stevens, op. cit., p. 602. 73 See for example Barto Arnold, op. cit., p. 174.

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salvage pending permission of the owner may result in its destruction. This is not necessarily the case for underwater cultural heritage. However marine peril is defined, it is unlikely that underwater cultural heritage faces so immediate a danger that the owner cannot be contacted. Nevertheless, broad definition of marine peril has enabled salvors to recover underwater cultural heritage without seeking the owner’s prior permission. Applying salvage law to underwater cultural heritage therefore may frustrate the owner who wishes it to remain in situ, or prefers non-intrusive investigation. The salvor and the owner of a vessel may agree contractually on the terms of salvage services, and it is the contractual terms which will then govern the relationship. For vessels lost over a century ago, there may still be an owner, or insurer, with a proprietary interest in the wreck who may negotiate a salvage contract. Success Salvage law requires the salvor to show that the salvage service has been a success. Traditionally, success has meant saving the property from marine peril. It is uncertain what success means when underwater cultural heritage is at stake. While the recovery of the underwater cultural heritage may result in the re-entry of economically valuable commodities to the stream of commerce, it may not result in the preservation of the wreck’s archaeological or historical value. This, however, has become a factor, not in determining whether salvage ought to be applied, but rather in the calculation of the quantum of the salvage award. Salvor’s rights Following a successful salvage, the salvor has an action in personam against the owner of the salved property. That is, the salvor can take action against the owner to recover a reward. In order to secure the salvage award, the salvor is also granted a maritime lien on the salved property. A maritime lien is a ‘privileged charge on maritime property and arises by operation of law’74 at the moment when the salvage service is rendered. It is a substantive right and is not dependent on possession.75 So, for example, property in the possession of a museum for conservation purposes will still be subject to the salvor’s maritime lien. The salvor does not obtain title to the artefacts but is entitled to exclusive possession, subject to a court order or the regulatory system requiring that possession be handed over to a receiver of wreck or similar public official. Where the owner of the salved property is not known, the salvor can take action against the salved property itself on the basis of the maritime lien, in an action in rem.76 The in rem action is based

74 A. Mandaraka-Sheppard, Modern Admiralty Law, Abingdon: Routledge-Cavendish, 2007, p. 22. 75 See S. Dromgoole and N. Gaskell, ‘Who has a Right to Historic Wrecks and Wreckage?’ (1993) 2 International Journal of Cultural Property 246. 76 For a more detailed discussion of jurisdiction in rem, see Mandaraka-Sheppard, op. cit., pp. 22–4; and Owen, op. cit., pp. 158–69.

Underwater cultural heritage 305 on the admiralty fiction that a ship is a person against whom suit can be brought and judgement entered.77 This can only occur if the res is within the jurisdiction of the court. In the case of underwater cultural heritage, the ability of a salvor to take action against the wreck itself is vitally important, because, in most cases, the vessel will have been long lost, and her owner difficult if not impossible to find. The in rem action will also allow a salvor to seek an exclusive right to salvage the wreck. Exclusive possession Often a salvor, having discovered a site, will require some time to undertake recovery. The risks arise that others will invade the site during the salvor’s absence and clandestinely remove artefacts. The law of salvage has therefore developed the status of salvor-in-possession, or ‘right of first salvor’, whereby the court will recognise the first salvor’s exclusive right to salvage the discovery.78 However, the discoverer of a site is not entitled to ownership or possession of the wreck or artefacts merely on the basis of its discovery. A would-be-salvor is not entitled by salvage law to an award merely on the strength of having discovered a wreck and having the intention to recover it. Salvage law requires the finder to have actual or constructive possession of the wreck being salvaged.79 The courts have held that possession is a matter of fact and degree, and will consider, first, the salvor’s animus possidendi and, second, that the salvor has ‘exercised such use and occupation as is reasonably practicable having regard to the subject matter of the derelict, its location and the practice of the salvors’.80 A discoverer will therefore be under a great deal of pressure to recover some artefacts in order to trigger the protective mechanisms of salvage law or invoke the law of finds. Where underwater cultural heritage lies beyond the territorial waters of a State, that State no longer has jurisdiction over the actual site. While it may have in personam jurisdiction over the salvors, it does not have jurisdiction over the res, which is the underwater cultural heritage site, usually a wreck. In the UK, therefore, the court’s jurisdiction is limited by its in personam jurisdiction. In the US, where most of the world’s deepwater salvors are based, the courts have

77 E. Boesten, Archaeological and/or Historic Valuable Shipwrecks in International Waters: Public International law and What if Offers, The Hague: TMC Asser Press, 2002, p. 99. 78 On the status of salvor in possession in the UK, see P. Fletcher-Tomenius, P.J. O’Keefe and M. Williams, ‘Salvor in Possession: Friend or Foe to Marine Archaeology’ (2000) 9 International Journal of Cultural Property 263. 79 For example, Owen argues that in Subaqueous Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel 557 F. Supp 597 (D. Md. 1983), the court should have dismissed the salvor’s claim to title of the abandoned vessel because the salvor had in fact not yet recovered anything from the site. Without an artefact in its possession, the salvor had nothing to which a maritime lien may attach; and without submission by the salvor of an artefact to the court’s control, the court lacked the basis in admiralty law for jurisdiction in rem. See Owen, op. cit., p. 156. 80 Morris v. Lyonesse Salvage Co. Ltd (The Association & The Romney), [1970] 2 Lloyd’s Rep. 59, 61 (Adm. Ct.).

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developed the concept of quasi in rem jurisdiction, which is a form of extra-territorial jurisdiction over wreck sites in international waters. Quasi in rem jurisdiction is underpinned by the principle of constructive possession which allows the use of the fiction that the wreck site and all artefacts constitute a single res. By bringing part of the res, in the form of a single artefact from the wreck, into the court’s jurisdiction, the fiction is established that the whole wreck is then subject to the court’s jurisdiction. For example, in J.F. Moyer v. The Wreck of the Andrea Doria,81 salvors recovered mosaic friezes from the wreck of the Andrea Doria, which had sunk in international waters in 1956 following a collision, and brought them into the US. The court, whilst recognising that the wreck site lay in international waters, granted the salvor protective relief over the site itself on the basis that the material brought into the court’s jurisdiction was a substitute for the site, and represented the site, it being impossible to have brought the wreck itself into the jurisdiction. Thus, the salvor was recognised as a salvor-in-possession and the courts recognised the salvor’s exclusive right to salvage the wreck. Similarly, following the discovery of the Central America, the salvor recovered a lump of coal and brought this to the court in order to invoke the courts quasi in rem jurisdiction.82 US courts have also exercised quasi in rem jurisdiction over the site of the Titanic. In granting exclusive possession of a salvage site to the first salvor, US courts have also considered the salvor’s commitment to salvage, including, in some cases, the extent of the salvor’s commitment to preserve the archaeological and historical value of the wreck.83 In most cases, however, this commitment is a measure of the quantum of the salvage award rather than a prerequisite for the granting of exclusive salvage rights. The ongoing right of salvor-in-possession will continue only as long as the salvage operation is continuous. The condition of the operation being continuous is subject to the facts of the actual case, and therefore dependent on the ability of the salvor to actually get to the underwater cultural heritage site and undertake operations. For example, in 1995 a rival to the salvor of the Titanic, RMST, sought to have the court’s declaration of RMST as salvor in possession rescinded on the basis that RMST had failed to undertake an expedition during the 1995 ‘weather window’, and had failed to diligently salvage the Titanic, had evidenced no intention to salvage it in the future, and, at that time, was financially incapable of utilising its rights.84 The court reviewed the activities of RMST and denied the motion, holding that RMST had done enough to maintain its status as salvor in possession given all the circumstances, including the small opportunity

81 J.F. Moyer v. The Wreck of the Andrea Doria, 836 F. Supp.1099 (D.N.J.1993). 82 Columbus-America Discovery Group, Inc. v. Unidentified Wreck of the S.S. Central America, [1989] AMC 1955. 83 Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186, 204 (S.D. Fla. 1981); Deep Sea Research, Inc. v. The Brother Jonathan, 883 F Supp. 1343, 1362–63 (N.D. Cal. 1995). 84 R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, (“Titanic I”), 924 F.Supp. 714, 716 (E.D.Va. 1996).

Underwater cultural heritage 307 available during the ‘weather window’. Salvage courts in the UK and US will protect the salvor’s exclusive access by injunction and the award of damages for a breach.85 Salvage law therefore affords the salvor a possessory right to the underwater cultural heritage at the wreck site as well as to artefacts recovered from the site, enabling the salvor to oppose illicit excavation. Certainly in the US, the easiest way for a salvor to prove possession of the site is to proffer an article recovered from the site. In this respect, salvage law does not encourage pre-disturbance surveys, from which valuable archaeological information can be gained. A salvor may therefore undertake an excavation before realising the full importance of the underwater cultural heritage site, disturbing artefacts and destroying important archaeological information. Indeed, the removal of artefacts itself prejudices the integrity of the site.86 Although discovery of a wreck site without recovering an artefact has, at least in the US, been insufficient to vest exclusive salvage rights, telepresence may offer an alternative method of constructive possession for a salvor, alleviating the finder’s need to proffer an artefact from the site. Telepresence refers to the ability of the salvors to locate and to investigate the underwater cultural heritage site using remotely operated vehicles (ROVs) and to provide real time imaging of the wreck. While the salvor of the Central America had recovered coal and brought that to the court as a substitute for the wreck site, the court in Columbus America Discovery Group, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel 87 did state obiter that telepresence might be sufficient to constitute continued possession for the purposes of recognising the salvor’s exclusive salvage right. Salvage award The public policy underpinning the determination of the salvage award is ‘to hold out a continuing incentive to undertake the physical and financial risks entailed in salvage operations’.88 The determination of the salvage awards for the recovery of artefacts from an historic wreck have tended to be extremely high. In the UK, it is 100 per cent of the net proceeds of the sale of the artefacts and in the US it is often

85 Reeder, op. cit., p. 289. 86 In the case of chance finds, particularly those by sports divers, who may not recognise the archaeological importance of the wreck, it will be almost impossible to prevent recovery, short of a blanket ban on the recovery of all objects from underwater. However, the enforcement of such a ban would be impractical for police and prosecutors. S. Dromgoole, ‘Protection of Historic Wreck: The UK Approach: Part II: Towards Reform’ (1989) 4 International Journal of Estuarine and Coastal Law 103. 87 Columbus America Discovery Group, Inc. v The Unidentified, Wrecked and Abandoned Sailing Vessel, 1989 AMC 1955. 88 Cobb Coin Co. v Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 557 (S.D. Fla. 1982).

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greater than 75 per cent of the value of the property. Awards cannot, however, surpass the value of the salved property. The salvage award will be assessed by taking into account a number of factors, such as the value of the property salvaged, value of the equipment used by the salvor, the nature and degree of marine peril at the time of the salvage operation, the salvor’s skill in undertaking the recovery and the measure of its success.89 The preservation of the archaeological value of a wreck is not, in itself, a requirement of the law of salvage. In the UK, for example, the court in Morris v. Lyonesse Salvage Co. Ltd (The Association)90 did not appear to take any cognisance of the extent of the salvor’s attempts to preserve the archaeological integrity of the wreck. US courts, however, have, to varying degrees, begun to take cognisance of the archaeological value to investigate the site, and to take into account the extent to which the salvor has preserved the archaeological value of site in determining the size of the salvage award. For example, in Cobb Coin Co., Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel,91 the court suggested that ‘in order to state a claim for a salvage award on an ancient vessel of historical and archaeological significance, it is an essential element that the salvor document to the Admiralty Court’s satisfaction that it has preserved the archaeological provenance of the shipwreck’. In MDM Salvage, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel,92 the court denied the applications of salvors competing to recover property from a Spanish galleon because neither had attempted to preserve the archaeological integrity of the wreck. The court noted that: Archaeological preservation, on-site photography, and the marking of sites are particularly important ... as the public interest is compelling in circumstances in which a treasure ship, constituting a window in time provides a unique opportunity to create a historical record of an earlier era. These factors constitute a significant element of entitlement to be considered when exclusive salvage rights are sought.

89 For example, in Cobb Coin Co., Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, the court took into account: (1) the labour expended by the salvors in rendering the salvage service; (2) the promptitude, skill and energy displayed in rendering the service and saving the property; (3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the property was rescued, 549 F.Supp. 540, 557, (S.D. Fla. 1982). 90 Morris v. Lyonesse Salvage Co. Ltd (The Association & The Romney), [1970] 2 Lloyd’s Rep. 59, 61 (Adm. Ct.). See Reeder, op. cit., p. 289. 91 Cobb Coin Co., Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 559 (S.D. Fla. 1982). See also D.B. Shallcross, and A.G. Giesecke, ‘Recent Developments in Litigation Concerning the Recovery of Historic Shipwrecks’ (1982) 10 Syracuse Journal of International Law and Commerce 400; Herscher, op. cit., p. 95. 92 MDM Salvage, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 631 F.Supp. 308, 310–11.

Underwater cultural heritage 309 In Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel,93 the court denied a salvage award in part due to the salvor’s unscientific method of excavation, which did not protect the archaeological and historical integrity of the shipwreck. More recently, in Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company,94 the court took into account the skills of the salvor in protecting the archaeological and historical integrity of the wreck, but gave no indication as to how this had been achieved. Controversy exists about the extent to which the salvors had actually adhered to best archaeological practice notwithstanding the court’s findings. It appears that courts may differentiate between archaeological excavations and salvage operations, requiring a lower archaeological standard from salvors. In Platoro Ltd. v. The Unidentified Remains of a Vessel 95 the court declined to hold the salvors to the standards required of marine archaeology.96 While in a number of these decisions courts have found that the salvors partially or totally preserved the archaeological and historical integrity of the wreck, professional archaeologists differed and argued that standards which the courts had accepted as ‘good’ archaeology were in fact poor, and that the courts were not qualified to determine these standards. In some of these cases, the courts did not consult any underwater archaeologist to determine whether the standards of excavation were appropriate.97 It may be just as difficult for a court to determine if in fact these standards have been maintained throughout the salvage operation.98 Ownership of underwater cultural heritage It is not unusual for a dispute to arise over the ownership of recovered material, including underwater cultural heritage. Salvage law does not grant the salvor ownership of the recovered artefacts. It is assumed that the salvor recovers the property for the benefit of the owner, and is rewarded for doing so. Difficulties arise when the owner cannot be identified or does not come forward to claim salvaged property. While in these circumstances a court may deem the recovered material to have been abandoned by the owner, further difficulties arise when a person does come forward to claim ownership of the recovered property, but the salvor alleges that the owner had, prior to recovery of the material, abandoned ownership. Upon a finding of abandonment, it then needs to be determined who ought to become the owner of the recovered material. Further complicating ownership issues is the

93 Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562, 1568 (S.D. Fla. 1983). 94 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 42 F.Supp. 1327, 1990 (E.D. Va. 1990); 974 F.2d 450 (4th Cir. 1992). 95 Platoro Ltd. v. The Unidentified Remains of a Vessel, 518 F.Supp. 816, 822 (W.D. Tex. 1981). 96 See also J.F. Moyer v. The Wreck of the Andrea Doria, 836 F.Supp. 1099, 1107, 1994 AMC 1021, 1031 (D.N.J. 1993). 97 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 974 F.2d 450 (4th Cir. 1992). 98 See further Fletcher-Tomenius, op. cit., p. 293.

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matter of the ownership of State owned vessels, particularly warships, as many States consider that these vessels can only be abandoned by an express declaration to that effect.99 A possibility therefore exist that different ‘tests’ of abandonment apply between privately owned merchant vessels and State owned vessels. Abandonment is the voluntary relinquishment of one’s right in property.100 It is a question of intent, best evidenced by an express declaration of abandonment by the owner. In most cases, however, abandonment is implied by the act of leaving or deserting the property without the intention of recovering it. While this may occur through a failure to take action to recover the lost vessel and its contents over a period of time, abandonment must be inferred from all the circumstances, including conduct of the owner, the circumstances of the loss of the vessel and its final resting place, as well as the opportunity for recovery.101 For example, in the Canadian case Her Majesty The Queen in Right of Ontario v. Mar-Dive Corporation et al.102, the court was required to determine whether the owner had abandoned ownership of a ship that had sunk in Lake Erie in 1852 due to a collision. The owner had sued the other vessel for the total loss of the ship, and had not objected when divers had removed the safe from the ship in 1856. This, the court concluded, amounted to the ‘giving up’, ‘total desertion’ and ‘absolute relinquishment’ of private goods amounting to abandonment. In this case, the owner had, by their actions, impliedly abandoned ownership. In the US, implied abandonment by the actions of the owner, or more unusually, by their inaction, has been considered in a number of cases involving historic wreck. In cases where no owner comes forward to claim the recovered material, it is easy to conclude that the owner has abandoned the property. For example,

99 Disputes concerning the ownership of sunken State owned vessels include: the Juno and La Galga, Spanish vessels sunk in US territorial waters (see Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 47 F.Supp. 2d 678 (E.D. Va. 1999); the La Balle, a French vessel sunk in US territorial waters; a World War II German U-boat sunk in 1944 off Singapore (Simon v Taylor and Another [1975] 2 Lloyd’s Rep. 338 (Singapore High Court); the Akerendam, a VOC vessel and U-76 in Norwegian waters (see S. Braekmus, ‘Salvage of Wrecks and Wreckage Legal Issues Arriving from the Discovery of Coins at Runde in 1972’ (1976); Scandinavian Studies in Law 39; and the Birkenhead, a UK vessel sunk in South African territorial waters (see A. Kayle, Salvage of the Birkenhead, Johannesburg: Southern Book Publishers, 1990). In the case of the Birkenhead and CSS Alabama it is interesting to note that the flag State claims of ownership were not recognised in the Exchange of Notes. In the case of the CSS Alabama, France did acknowledge the US’s claim in other correspondence. J.A. Roach, ‘France Concedes United States has title to CSS Alabama’ (1991) 85 American Journal of International Law 381. Similarly, the agreement between the Netherlands and Australia regarding VOC vessels does not actually acknowledge the Dutch Government’s ownership of these vessels prior to the conclusion of the agreement (see Agreement between the Netherlands and Australia Concerning Old Dutch Shipwrecks 1972, reprinted in Prott and Srong, op. cit., pp. 75–78). 100 Boesten, op. cit., p. 110. 101 Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessels, 833 F. 2d 1059 (1st Cir. 1987); Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978). 102 Her Majesty The Queen in Right of Ontario v. Mar-Dive Corporation et al., 1997 AMC 1000.

Underwater cultural heritage 311 in Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel,103 neither Spain nor any other entity made an appearance in the in rem action, allowing the court to easily find that the Nuestra Señora de Atocha must be considered abandoned. It is rather more difficult to imply abandonment when an owner does come forward to claim the property and the finder asserts that the owner had abandoned that property. For example, Zych v. Unidentified, Wrecked and Abandoned Vessel 104 concerned question of the ownership of the steamer Lady Elgin, lost in Lake Michigan in 1860 after a collision with another vessel, the schooner Augusta. The successor of the insurance company that had paid a claim in 1860 to the owner of the vessel after it had sunk had given title of the wreck to a foundation, who then asserted ownership to the artefacts recovered by the salvor. The court found that a mere passage of time, inferring a failure of the insurance company or its successor to find and recover the wreck, was insufficient in itself to establish an intention to abandon ownership of the property. Similarly, in Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company105 the court had to consider whether the insurance company that had paid for the loss of the gold that had been on board the SS Central America when it sank in 1857 had subsequently abandoned their claim by their deliberate destruction of the insurance document relating to the claim, as well as by their inaction in seeking to recover the lost gold. The court concluded that they had not implied abandoned ownership, declaring that ‘once an article has been lost at sea, lapse of time and non-user are not sufficient, in and of themselves, to constitute an abandonment’.106 Thus, whilst express abandonment will clearly allow for the application of the law of finds, the court may infer abandonment only if clear and convincing evidence is adduced to this effect.107 Where the owner of the vessel is a sovereign State, US courts have tended to require nothing less than an express abandonment. For example, without any evidence that Spain had expressly abandonment ownership of the Juno, sunk in 1750, and the La Galga, sunk in 1802, both in the waters of Virginia, the court would not find abandonment.108 Once a wreck has been found to have been abandoned, the question of who then becomes the owner arises. The application of the law of finds will award title to abandoned property to the first person to find the property, and with the intent

103 Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 408 F.Supp. 907 (S.D. Fla 1976). 104 Zych v. Unidentified, Wrecked and Abandoned Vessel, 755 F.Supp. 213 (N.D. Ill. 1990). 105 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 974 F.2d 450 (4th Cir. 1992). See also Zych v. Unidentified, Wrecked and Abandoned Vessel, 755 F.Supp. 213 (N.D. Ill. 1990). 106 1992 AMC 2704, 2716–2722. 107 Columbus-America Discovery Group, Inc. v. Atlantic Mutual Insurance Company, 974 F.2d. 450 (4th Cir. 1992). 108 Sea Hunt, Inc. v Unidentified, Shipwrecked Vessel or Vessels, 47 F.Supp. 2d 678 (E.D. Va. 1999). See further C.J.S. Forrest, ‘An International Perspective on Sunken State Vessels as Underwater Cultural Heritage’ (2003) 34 Ocean Development and International Law 41.

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to acquire the abandoned property, takes possession of it.109 This title is good against all, including the original owner. The law of finds applies to both terrestrial and maritime domains, and it is essentially a common law concept. It has, however, long had a maritime dimension. For example, the Laws of Oleron provided that ‘… if any going along the sea shore … happens to find gold or silver … he may keep it to himself; that is, if he knows not to whom to restore it …’.110 The law of finds dominates US historic wreck jurisprudence. Importantly, US Federal Admiralty courts will apply the law of finds to abandoned wrecks found beyond the waters of individual States. In many States, the law of finds does not apply as ownership of abandoned property is vested in the State.111 As such, a salvor may only acquire ownership of salvaged artefacts if the courts award this in lieu of a salvage award. For historically important artefacts, it is unlikely that any State would make such an award. In the UK, for example, the Royal Prerogative of the Crown applies, reflected in section 241(1) of the Merchant Shipping Act, which declares that ‘Her Majesty and her Royal successors are entitled to all unclaimed wrecks found in the United Kingdom or in United Kingdom waters …’.The exercise of the Crown’s sovereign prerogative is based on the wreck being within its territory, and is not based upon the registration of the vessel. In Pierce v Bemis112 the UK court had to consider the Crown’s right of ownership to material recovered from the wreck of the Lusitania, a British flagged vessel lying off the cost of Ireland, but subsequently brought into the UK after being recovered from the wreck. The court concluded that the Crown had no such right to wreck lying outside the UK’s waters, even if consequently brought into the UK. The flag of the vessel was therefore not a consideration in determining the Crown’s rights. This Royal Prerogative was also held to apply in Canada, where an 1852 wreck lying on the bed on the Canadian part of Lake Erie was held by Her Majesty in Right of Ontario.113 Finders It is essential to encourage a finder to report a find before recovering any artefacts, so that qualified archaeologists can determine the archaeological importance of a site. This is best achieved by providing either a financial incentive and/or a recreational incentive to the finder. The latter might include allowing the finder to participate in the surveying and excavation of the site. One rationale supporting the generous awards to salvors by US and UK admiralty courts is that they encourage the reporting of archaeologically important finds. While salvage law generally provides a financial reward for reporting finds and recovering artefacts, it does not

109 Boesten, op. cit., p. 109. 110 Article XXXVI. 111 These include Finland, France, Greece, China, South Africa, Norway, Sweden, United Kingdom, Australia and Ireland. See generally the relevant country chapters in Dromgoole (2006) op. cit. 112 Pierce v. Bemis [1986] Q.B. 384. 113 Her Majesty The Queen in Right of Ontario v. Mar-Dive Corporation et al., 1997 AMC 1000.

Underwater cultural heritage 313 reward for reporting without recovering. The prudent salvor may wish to work in as much secrecy as possible until the underwater cultural heritage has been recovered and the site is no longer susceptible to trespass. It would appear from US writers that a would-be-salvor is not entitled by salvage law to an award merely on the strength of having discovered a wreck and having the intention to recover it. As salvage law requires the finder to have actual or constructive possession of the underwater cultural heritage, the discoverer of a site is not entitled to ownership or possession of the underwater cultural heritage merely on the basis of its discovery. A discoverer will therefore be under a great deal of pressure to recover some artefacts in order trigger the protective mechanisms of salvage law or invoke the law of finds. Although discovery of a cultural heritage site is insufficient to vest exclusive salvage rights, telepresence increasingly is being accepted as sufficient, without the finder having to proffer artefacts from the site. This development has improved the conservation of archaeological value otherwise lost. A finder’s award also has been suggested; it would not require a finder to remove artefacts from the site.114 Such an award would ordinarily be associated with a ban on the salvage of historic wrecks by reference to the traditional award scheme, but much would again depend on the ability to police and administer such a system. A finder who believes that he would profit more from illicit excavation than from the finder’s award will not necessarily report that find. Finder’s awards are used in some jurisdictions to encourage the reporting of finds. For example, in Australia, salvage law is not applied to underwater cultural heritage, but a discoverer may be rewarded for reporting a find.115

The conflict between archaeology and salvage The general view is that ‘archaeologists value shipwrecks as a means to study past cultures, sports divers value shipwrecks for their potential as recreational sites and treasure salvors value shipwrecks for economic profit’.116 Many see these different values as conflicting and, at times, mutually exclusive.117 Many in the archaeological community have suggested that treasure salvors are a major threat to underwater cultural heritage and should be shunned as a user group.118 Treasure salvors, however, maintain that they have less impact on underwater cultural

114 A finder’s fee was proposed in Recommendation 848 (Council of Europe). 115 Historic Shipwreck Act 1976. The draft European Convention had proposed the imposition of a fixed finder’s award for the reporting of artefacts or sites, in an amount greater than a potential salvage award, in order to encourage reporting rather than the recovery of artefacts. 116 A.G. Giesecke, Historic Shipwreck Resources and State Law: A Development Perspective, Unpublished Ph.D. Thesis, Catholic University of America, 1992, p. 3. 117 Herscher, op. cit., p. 79. 118 E. Clément, ‘Current Developments at UNESCO Concerning the Protection of the Underwater Cultural Heritage’ (1996) 20 Marine Policy 309; R.J. Elia, ‘US Protection of Underwater Cultural Heritage Beyond the Territorial Sea: Problems and Prospects’ (2000) 29 International Journal of Nautical Archaeology 43.

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heritage than any other user group, because a number of factors significantly restrict the number of underwater cultural heritage sites, particularly wrecks, which are viable for commercial excavation. Such factors include the complications of working at depth, the high costs of retrieval technology, and the low percentage of wrecks involving cargo of high economic value. One commercial treasure salvage company estimates that there are at most twenty or thirty shipwrecks that are economically viable to excavate.119 Nevertheless, it is difficult to find a balance between the archaeological value of underwater cultural heritage and its economic value. Where the latter is given prominence, the former may not always be realised. It has therefore been suggested that the elimination of any economic incentive to recover underwater cultural heritage will ensure that the archaeological value is preserved. Salvage law and the law of finds is the legal mechanism through which this economic motive is realised, and as such, it is argued, should not be applied to underwater cultural heritage. Opponents of the application of salvage law to underwater cultural heritage identify four major deleterious consequences: (1) the economic exploitation of underwater cultural heritage, (2) the resulting private ownership of underwater cultural heritage, (3) the splitting up of collections, and (4) the necessary hasty excavation techniques required to minimise commercial costs and maximise the salvage award.120 The economic exploitation of underwater cultural heritage The ‘purist’ sector of the archaeological community would argue that there are moral and ethical objections to profiting from archaeological resources, and that underwater cultural heritage’s archaeological value and economic values are incompatible. Elia, for example, declares that those pursuing the realisation of each have ‘fundamentally opposed core values, goals, methods and interests’121 so that ‘commercial salvage operations are fundamentally at odds with preservation’.122 It is argued that, on a doctrinal level, the commercial exploitation of the underwater cultural heritage is morally and ethically wrong. This ethical opposition to the commercial recovery of underwater cultural heritage is often articulated in terms

119 G. Stemm, ‘Protection of Our Underwater Cultural heritage: Thoughts on the Future of Historic Shipwrecks’, paper presented at Law of the Sea Institute, 1998, p. 7. Other estimates put the number of economically viable wrecks as approximately 100 to 200, which would yield a salvage value of more than US$10 million. Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc CLT-96/CONF.605/6,12 (May 1996). 120 For a more detailed discussion of the arguments for and against commercial recovery of historic wreck, see J.P. Sweeney, ‘An Overview of Commercial Salvage Principles in the Context of Marine Archaeology’ (1999) 30 Journal of Maritime Law and Commerce 185; O. Varmer, ‘The Case Against the “Salvage” of the Cultural Heritage’ (1999) 30 Journal of Maritime Law and Commerce 279. D.K. Abbass, ‘A Marine Archaeologists looks at treasure salvage’ (1999) 30 Journal of Maritime Law and Commerce 261. 121 R.J. Elia, ‘The Ethics of Collaboration: Archaeologists and the Wydah Project’ (1992) 26 Historical Archaeology 46. 122 Elia (1992) op. cit., p. 49.

Underwater cultural heritage 315 of opposition to the sale or private ownership of underwater cultural heritage. 123 It has therefore been the policy of many of the archaeological societies to oppose the commercial recovery of historic shipwrecks and to prevent members from taking part in commercial recovery operations. Unfortunately, it is not always clear why such a draconian stance is taken. For example, the editor of the Encyclopaedia of Underwater and Maritime Archaeology,124 in a footnote to the entry on the recovery of artefacts from the wreck of the Nuestra Señora de Atocha, stated: This site is included because it is well known and widely reported in the popular media and press. However, sites such as this have primarily been the focus of commercial orientated activity that has often resulted in the sale of recovered artefacts to private owners, the transfer of artefacts to private investors, or the splitting of artefacts between a government and a private salvor. Despite the presence of an archaeologist on the site, or the recovery of any archaeological data, the long-term potential of a site to yield meaningful information is compromised when the collection of artefacts – the primary data of an archaeological site – has been dispersed. Furthermore, the sale of artefacts from the shipwreck site endorses the concept that the archaeological past and antiquities are commodities for sale on the open market, which has proved detrimental to the protection and study of the past. The inclusion of this site in this encyclopaedia does not sanction or condone this type of activity. This does not necessarily reflect an opposition to any economic utilisation of underwater cultural heritage. Rather, the opposition to the commercial recovery of underwater cultural heritage is not so much because of its profit motive, but because of the manner in which that profit is realised as a result of the application of salvage law. It is, however, necessary to distinguish between opposition to the application of salvage law to the recovery of underwater cultural heritage and opposition to the economic utilisation of underwater cultural heritage, irrespective of the legal regime that governs its recovery. Green, for example, states that: It is the profit motive, which leads in turn to the sale of artefacts that is the problem ... . However, should the treasure hunters consider carrying out careful excavation in order to keep their collections together, conserved in proper environmental conditions, in a museum so that they may profit

123 For example, artefacts from the historically important wreck of H.M.S. Invincible were sold on auction in the UK. It was only at the discretion of the salvor that a representative sample of the artefacts was sold separately by private agreement with the Chatham Historic Dockyard Trust. See S. Dromgoole, Law and the Underwater Cultural Heritage: A Legal Framework for the Protection of the Underwater Cultural Heritage of the United Kingdom, Unpublished Ph.D. Thesis, Southampton: University of Southampton, 1993. 124 Delgado, op. cit., p. 298.

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There is therefore scope for the economic exploitation of the underwater cultural heritage as long as it is recovered according to appropriate archaeological practices and techniques and does not lead to the sale of individual artefacts, resulting in a splitting up of the collection. Indeed, there may be very useful benefits to allowing some commercial exploitation. For example, a State funded museum might contract a company to recover underwater cultural heritage, allowing the company to charge for the service and make a profit. If conducted to appropriate standards so that the archaeological value of the underwater cultural heritage is maximised, and the items of underwater cultural heritage are not subject to market forces, but vested in the museum on behalf of the public, there is no reason for the archaeological community to oppose such a commercial recovery. Indeed, this may be a particularly useful service when underwater cultural heritage in situ is in danger of being destroyed and the State does not have the resources to undertake an emergency excavation. The opposition to the commercial recovery of underwater cultural heritage must therefore rest solely on the possibility of items of underwater cultural heritage being subject to market forces. Ownership of artefacts The primary objective of the salvage company is to make a profit. In some jurisdictions, like the US, the law of finds may award the recovered material to the salvor. The salvor may also acquire ownership of the recovered artefacts if a salvage award is made in specie. In both cases, the recovered artefacts are often sold, usually at auction, by the salvors. It has been argued that archaeologically important artefacts should be preserved in museums, rather than in private collections. In some jurisdictions, the commercial recovery and sale of artefacts leaves museums to compete for them on the open market with private purchasers. This is, it is argued, advantageous to the salvor, at the expense of museums and by implication, the general public. While it may help to allow a museum the right of first refusal when artefacts are presented for sale, the museum will still have to pay the market value, which, increasingly, museums cannot afford. It is therefore argued that, while the recovery of underwater cultural heritage might be undertaken for economic gain, ownership of the recovered artefacts should not be subject to a free market but should vest in public institutions. This argument is buttressed by the fact that, increasingly, salvors do not need to sell artefacts in order to profit from their recovery. Today, profits can come from entertainment markets in which the salvors can offer their media rights, or else derivative products such as films or books. They can also charge for exhibitions of the artefacts

125 Green, op. cit., p. 258.

Underwater cultural heritage 317 themselves, and sell their replicas. Some salvors have even begun to charge tourists for the opportunity to accompany their expeditions.126 If a salvor could secure exclusive control of the site and then recoup the costs of the expedition through the sale of images of the wreck, instead of through the recovery and sale of artefacts, the salvor would then have a stake in the archaeological value of underwater cultural heritage in situ. In the US, unfortunately, the decision in R.M.S. Titanic, Inc. v. Haver127 has undermined this potential by holding that the right of a salvor in possession to photograph and film the wreck is not exclusive. This leaves a salvor without an economically viable alternative to the removal of artefacts from the site. In this way, the court has stunted the growth of salvage law, and made more acute the need for an alternative regime applicable to underwater cultural heritage.128 Splitting up of collections It is also argued that the consequence of using salvage law to reap the economic value of underwater cultural heritage leads to the splitting up of collections that should be kept together for further scientific study.129 While it is true that this may occur, it is not necessarily inevitable, and it is certainly feasible that an entire collection could be sold as a single entity.130 It may also be debatable as to whether all items recovered from an underwater cultural heritage archaeological site form part of the artefact collection.131 Treasure salvors have argued that a distinction between cultural artefacts, with little economic value but high cultural value, and trade goods of high economic value but relatively low cultural value, such as coins, bullion and porcelain, particular items of which are largely indistinguishable, and which often are found in large quantities at a wreck. According to salvors, a representative sample of these trade goods could be preserved for whatever contribution they might make to cultural heritage, while the remainder could be separated for sale. It is argued that the collection of redundant multiple artefacts and data is ‘neither good science nor a cost effective use of funds and resources, whether they be public or private’132 and that to prohibit the recovery of all

126 J. Harrington, ‘Hunt for Treasure, but It’ll Cost a Pretty Doubloon’, St. Petersburg Times, 1 September 2000. 127 R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999). 128 See Forrest (2000) op. cit., p. 1. 129 Varmer, op. cit., p. 97, p. 2; J.A.R. Nafziger, ‘Historic Salvage Law Revisited’ (2000) 31 Ocean Development and International Law 81. 130 RMST Inc., the salvors of the RMS Titanic, have stipulated that no artefacts from the collection would be sold individually, and that the company would only sell the collection as a single entity. 131 For example, the salvor did not regarded coal recovered from the Titanic as part of the cultural collection of artefacts, and individual pieces of coal have been sold to collectors. R.M.S. Titanic Inc. v. The Wrecked and Abandoned Vessel, 924 F.Supp. 714 (E.D. Va.). 132 Roach, op. cit., p. 99.

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underwater cultural heritage, or to prohibit the sale of all trade goods that are found in large numbers, is an unbalanced public policy. Employment of inappropriate recovery techniques While the ‘purist’ sector of the archaeological community regard the realisation of the underwater cultural heritage’s archaeological value as being incompatible, and mutually exclusive, from the realisation of its economic value, others perceive the conflict as being characterised by the nature of the activities undertaken by treasure salvors in order to obtain a profit rather than by any opposition to the policy of making a profit from the recovery of underwater cultural heritage. As such, opposition to the commercial recovery is directed at the excavation methodology. On discovery of an underwater cultural heritage site, salvage law encourages quick action to recover at least some artefacts as the salvor must prove that he has possession of the recovery site before he can obtain an order making his access to the site exclusive. Whether or not exclusive access is gained, salvors, it is argued, need to implement cost effective recovery methods, which are not time consuming. This is at variance with the time consuming, painstaking and deliberate excavation techniques necessary to reap the full archaeological value from underwater cultural heritage.133 It is therefore argued that a commercial operation regulated by salvage law will tend to recover those artefacts with the highest commercial value first, possibly to the detriment of other cultural heritage items. Clement, for example, states that ‘[a]s the vessel they are working on is “in peril of the sea”, it is appropriate salvage practice to recover the objects of highest commercial value first, so that, if the wreck is ultimately lost before all salvageable materials have been recovered, the value of the loss is minimized’, and that the ‘[a]pplication of the law of salvage which encourages the removal of artefacts from the seabed for commercial purposes, may therefore lead to possible damage to and possible destruction of the underwater cultural heritage’.134 Similarly, Paull argues that ‘salvage destroys archaeological resources before proper documentation and restoration can occur’.135 Salvors have been described therefore as those ‘whose interest is solely in the recovery of commercially valuable material, without regard to the proper methodology of archaeological excavation’.136 It is therefore argued that a salvage operation will entail the recovery of the artefacts with the highest commercial value first, possibly to the detriment of cultural heritage items

133 P.J. O’Keefe, ‘Protecting the Underwater Cultural Heritage: The International Law Association Draft Convention’ (1996) 20 Marine Policy 303. 134 E. Clément, ‘Development of an International Convention on the Protection of the Underwater Cultural Heritage’, paper presented at Law of the Sea Institute, 1998, p. 31. 135 See J. Paull IV, ‘Salvaging sunken shipwrecks: whose treasure is it? A look at the competing interests for Florida’s underwater riches’ (1994) 9 Journal of Land Use and Environmental Law 359, 368. 136 Clément (1996) op. cit., pp. 309–23.

Underwater cultural heritage 319 of less economic value.137 The primary concern of the archaeological community is the fact that many of these commercial operations have not adhered to appropriate scientific standards of underwater archaeology. Whilst such standards may be imposed by a coastal State in its own waters, they do not necessarily govern recovery operations in international waters. Co-operation between user groups While some in the archaeological community will not recognise the economic value of underwater cultural heritage, others have, and the result has been a number of instances of co-operation between archaeologists, governments, sports divers and treasure salvors.138 Archaeological ‘pragmatists’ accept the fact that underwater cultural heritage sites will be excavated by amateurs and treasure salvors, legally in some State’s jurisdictions, illegally in others. Where commercial excavation is legal, archaeological pragmatists have worked with salvors in order to save as much archaeological information as possible. A number of States now have legislation that requires amateur archaeologists and treasure salvors to co-operate with professional archaeologists in the recovery of historic wrecks.139 The basis upon which these groups can co-operate is their mutual recognition of the variety of values inherent in the underwater cultural heritage and development of a realistic hierarchy of those values. There are also indications that the treasure salvage community recognises the archaeological value of the underwater cultural heritage and is willing to cooperate with the archaeological community in order to realise this value. According to UNESCO, ‘there are indications that serious professional salvors would welcome clear rules that would prevent controversy, of which there is at present a good deal, over the treatment of historic wreck’.140 Some in the treasure salvage community have accepted many of these criticisms, and have begun to take cognisance of the archaeological value of underwater cultural heritage, just as the technology to recover underwater cultural heritage in deep waters was evolving and becoming less expensive, and enabling more treasure salvors to move into international waters. Because of the growing awareness of the archaeological value of underwater cultural heritage, many of the deepwater recovery operations have begun to implement acceptable archaeological standards in deep water excavations. In 1996, a number of salvage companies established the Deep

137 P.J. O’Keefe, ‘Gold, Abandonment and Salvage’ (1994) 1 Lloyd’s Maritime and Commercial Law Quarterly 11. 138 Examples include the Maple Leaf project off Jacksonville, Florida, see Brice (1996) op. cit., p. 340; and the Salcombe Cannon wreck site, off Devon, UK, see V. Fenwick and A. Gale, Historic Shipwrecks: Discovered, Protected and Investigated, Stroud: Tempus, 1998, p. 86. 139 This includes the UK, South Africa, France, and the US. 140 Report by the Director-General on Action Taken Concerning the Desirability of Preparing an International Instrument for the Protection of the Underwater Cultural Heritage, UNESCO Doc. 29C/22 (5 August 1997) p. 35.

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Shipwreck Explorer’s Association to promote responsible and professional recovery of deep-sea historic wreck. The association established a code of ethics, which, though not entirely satisfactory to the archaeological community, does indicate an awareness of the archaeological value of underwater cultural heritage, and serves as a minimum standard upon which future negotiations in allocating this multiple-use resource can be conducted. Conclusion As the existence of a state of marine peril is a requirement for the application of salvage law, those favouring the continued application of that law to the recovery of underwater cultural heritage have embraced a broad definition of the term, one that encompasses not only physical threats, but also the risk of frustration of economic realisation. Those wishing to remove salvage law from the realm of underwater cultural heritage, on the other hand, prefer a narrower definition. The courts have not settled on either interpretation, so that salvage law has not been applied consistently to the recovery of underwater cultural heritage. The lack of uniformity on this point may be a result, not only of regional variations in the development of salvage law, but also of the failure of the International Maritime Organisation (IMO)141 to supply a definition of marine peril in the 1989 Salvage Convention. Salvage law therefore fails to offer a uniform system of law applicable to underwater cultural heritage in international waters. Salvage law has also been criticised as being inappropriate as a regime for protecting the archaeological and historic value of underwater cultural heritage. As a body of law, it encourages the premature recovery of underwater cultural heritage (often without any pre-disturbance survey to investigate the archaeological importance of the site); it encourages quick and unscientific excavation techniques; and it encourages the piecemeal sale of artefacts rather than their preservation as a collection.

International law of the sea The customary international law of the sea, concerned in the main with navigation and fishing rights of States, left the recovery of wreck to the private realm of admiralty law. The Conventional developments in the form of the 1958 Law of the Sea Conventions did not address underwater cultural heritage at all.142 However, with the development of sophisticated underwater exploration and exploitation technologies, States turned their attention to the natural resources of the deep seabed, which includes oil, natural gas, and minerals, particularly

141 The IMO is the specialised agency of the UN responsible for international maritime matters. 142 1958 Convention on the Territorial Sea and Contiguous Zone, Convention on the Continental Shelf, Convention on the High Seas; Convention on Fishing and Conservation of the Living Resources of the High Seas.

Underwater cultural heritage 321 manganese nodules. Before these could be exploited, many States, particularly developing States, called for these resources to be shared amongst all the nations of the world, as the common heritage of humankind. This led to international negotiations on the status of the deep seabed, commencing in 1968. At the same time, underwater archaeology in coastal waters was beginning to emerge as a scientific discipline, and so began the process of extending the scope of this discipline to underwater cultural heritage in international waters. Whilst these early deep seabed negotiations were concerned primarily with the status of the deep seabed and how its resources might be exploited, recognition was given to underwater cultural heritage that might be found there. From the deep seabed committee evolved negotiations that attempted to produced a single Convention governing all aspects of the world’s oceans. After protracted and difficult negotiations, the United Nations Convention of the Law of the Sea (UNCLOS) emerged, which was adopted in Montego Bay, Jamaica in 1982. From this Convention comes the only substantive law relating to underwater cultural heritage in international waters, contained in only two articles: 149 and 303. This substantive law is contained in only two articles: 149 and 303. As these articles have provided the basis from which all future negotiations have begun, it is important to consider these articles in some depth in order to determine whether they reveal any principles upon which a future regime might be based. Criticisms and various interpretations of these articles will also be considered in order to illustrate the degree of uncertainty which surrounds the implementation of these articles and the need to develop new rules of international law applicable to underwater cultural heritage. Article 149 In 1968, the Seabed Committee was convened to establish an international authority with jurisdiction over the seabed and ocean floor beyond the limits of national jurisdiction. This authority would regulate, co-ordinate, supervise and control all activities relating to the exploration and exploitation of the seabed resources. In 1970, the Secretary-General submitted a report to the Seabed committee, in which it was suggested that ‘the exploration and recovery of sunken ships and lost objects’ could be foreseen as a use of the seabed. The report also stated that although ‘wrecks, relics and lost objects lying on the seabed are not resources or at least not natural resources, ... they may fall under the jurisdiction of the machinery if the recovery of lost objects is regarded as another use of the seabed’. From this initiative evolved article 149, which reads: All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the state or country of origin, or the state of cultural origin, or the state of historical and archaeological origin.

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This article introduces two key notions concerning the preservation of underwater cultural heritage in international waters. First, that the preservation of underwater cultural heritage, in its broadest sense, is to be undertaken for the benefit of humankind.143 Second, the notion of preferential rights is introduced. It had been very difficult to reach consensus on the interpretation of this article, and it is unfortunate that though these principles were expressed, their substantive meanings were left vague and ambiguous. An important interpretational problem occurs as the Convention does not specify the manner in which objects of an archaeological and historical nature are to be ‘preserved or disposed of ’, nor who will provide the necessary funding for the preservation or disposal.144 Preservation may mean in situ preservation or placement in a museum, which would obviously require excavation and recovery.145 Newton argues that ‘preservation’ connotes delivery from marine peril, as defined in salvage law.146 Whether underwater cultural heritage is in marine peril is, however, debatable as it may reach a stage of harmony with the marine environment, particularly at great depths, and the retrieval of the artefacts may itself be the cause of its deterioration. Disposal may also be interpreted in a number of ways. As the power of disposal of archaeological and historical objects was originally envisaged to be exercised by the International Seabed Authority, it has been argued that ‘disposal’ may refer to the removal of these objects in order to recover valuable natural resources such as oil or manganese nodules beneath the historical objects.147 If disposal is to be interpreted to include sale, then it is uncertain as to how the proceeds are to be used to ‘benefit mankind as a whole’.148 This latter phrase itself suffers from interpretational ambiguity. Strati argues that ‘both the artefacts themselves and the information they provide form part of the common heritage of mankind’.149 Thus, it is argued that the concept of the common heritage of mankind, as proposed for the deep seabed, is applicable to these objects.150 Therefore, an interpretation of the word ‘benefit’ may be made in the context of Part XI. The primary benefit of the deep seabed mining provisions under this part are economic, and based on

143 On the concept of common heritage of mankind as it applies to cultural heritage, see C. Forrest, ‘Cultural heritage as the common heritage of humankind: A critical re-evaluation’ (2007) 40(1) The Comparative and International Law Journal of Southern Africa 124. On its more general application in international law see K. Baslar, The Concept of the Common Heritage of Mankind in International Law, Leiden: Martinus Nijhoff Publishers, 1998. 144 A. Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea, Leiden: Martinus Nijhoff Publishers, 1995, p. 300 145 L. Migliorino, ‘In Situ protection of the underwater cultural heritage under international treaties and national legislation’ (1995) 10 International Journal of Marine and Coastal Law 483, 486. 146 C.F. Newton, ‘Finders Keepers? The Titanic and the 1982 Law of the Sea Convention’ (1986) 10 Hastings International and Comparative Law Review 159, 178. 147 L.V. Prott and P.J. O’Keefe, Law and the Cultural Heritage: Volume 1, Discovery and Excavation, Abingdon: Professional Books Ltd, 1984, p. 98; Newton, op. cit., p. 180. 148 Dromgoole (1993) op. cit., pp. 4–39. 149 Strati, op. cit., p. 302. 150 J.A. Blake, A Study of the Protection of Underwater Archaeological Sites and Related Artefacts with Special Reference to Turkey, Unpublished PhD Thesis, Dundee: University of Dundee, 1996, p. 310.

Underwater cultural heritage 323 the idea that the economic benefits of mining resources such as manganese nodules are to be divided between all nations, not only those with the technology to mine it themselves. If the benefits of the disposal of underwater cultural heritage are viewed as economic, it may mean that artefacts themselves are divided up between nations or that the funds derived from displaying artefacts may be divided up. This, however, presupposes that the economic basis is that of the free-market economy, rather than a socialist economy. As both systems regard the allocation of property rights as benefiting humankind, but on the basis of very different economic models, the extent to which either may apply to underwater cultural heritage is uncertain. It is, however, submitted that within the context of cultural heritage management and protection, ‘benefit to mankind’ refers to the intangible aspect of learning from these objects and understanding the common past of humankind.151 The final interpretative problem lies in the ‘preferential rights’ to be given to a number of alternative States as it is difficult to determine which of the alternative States should have preferential rights.152 The alternative terms used, being the ‘State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin’ were never intended to be used as alternatives in the article, but were alternative negotiating terms which, inexplicably, were left in the article and never actually addressed by the Conference. The lack of an international administrative organ, the uncertainties regarding the possible economic disposition of the underwater cultural heritage and the uncertainties regarding the nationalistic approach taken regarding State preferential rights, negates the application of the concept of the common heritage of mankind to underwater cultural heritage found in the Area. The vagueness and ambiguity of article 149 leaves it with little judicial content. Its inclusion in Part XI, which deals essentially with the deep seabed mining regime, is in itself an anomaly and has led one commentator to question whether its inclusion was a political tactic employed by so-called States-of-origin that wished to advance the recognition of general cultural heritage rights in other maritime zones.153 Whatever the reason, it may prove to have been insightful as more underwater cultural heritage is being discovered in the deep seabed than might otherwise have thought probable when the convention was concluded. Article 303 Article 303 reads: 1

States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose.

151 Newton, op. cit., p. 181. 152 Newton, op. cit., p. 183. See also ILA Sixty-Fourth Conference, Report of the International Committee on Cultural Heritage Law, Queensland, Australia, 1990, p. 8. 153 B.H. Oxman, ‘Marine Archaeology and the International Law of the Sea’ (1988) 12 Columbia VLA Journal of Law and the Arts 353, 362.

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Underwater cultural heritage In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the sea-bed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.

Article 303 is found in Part XVI of the Convention dealing with general provisions, which applies to all maritime zones created by the convention. However, some uncertainty about its scope of application is created by the fact that article 303(2) refers to the contiguous zone by referring to the coastal State’s application of article 33; which provides that a coastal State has, in the zone extending from the outer edge of the territorial sea to a point 12 nm further out, the power to apply its customs, immigration, fiscal and sanitary laws.154 A number of commentators have argued that article 303, although found in the General Section rather than Part II, which deals exclusively with the contiguous zone, only applies to the contiguous zone.155 Article 303 was negotiated late in the conference, and it would appear that the reasons for including article 303 under the General Section was because the negotiating parties would have had to reopen negotiations on the contiguous zone, which, at that stage of the proceedings, had been completed and closed. The travaux préparatoires would therefore reveal that the intention of the negotiating parties might not necessarily have been to apply article 303 to all the maritime zones, but rather be interpreted to apply exclusively to the contiguous zone. Furthermore, since article 149 was drafted earlier than 303 and applies to the ‘Area’, it may be that the intention was for article 149 to apply exclusively to the ‘Area’, and article 303 exclusively to the contiguous zone. If this were not the case, then article 303(1), (3) and (4) would overlap with the provisions of article 149 with regard the ‘Area’, leading to inconsistency, for example, with regard to the preferential rights of some States. Some, commentators, however, disagree, arguing that article 303(1), (3) and (4) apply to all the maritime zones, with article 303(2) applying to the

154 Article 33 provides that: 1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. 155 Newton, op. cit., p. 187; Migliorino (1995) op. cit., p. 485; Blake, op. cit., pp. 89–95.

Underwater cultural heritage 325 contiguous zone.156 To interpret the article otherwise would mean that that there would be no provision for the preservation of underwater cultural heritage on the continental shelf or in the exclusive economic zone. The fact that article 303(1) imposes a duty to protect archaeological and historical objects ‘found at sea’ would reinforce the conclusion that articles 303(1), (3) and (4) apply to all the maritime zones. If this is the case, then all the maritime zones would be covered, but would result in both article 303(1), (3) and (4) and article 149 applying to the ‘Area’, giving rise to the potential for conflict. For example, since article 303 specifically retains the law of salvage, underwater cultural heritage may have to be disposed of in order to pay the salvage award. However, article 149 specifies that the disposal shall be for the benefit of mankind as a whole, which may not be achieved if the articles are disposed of for the salvage award. This conflict may, however, be resolved by application of the principle lex specialis derogat legi generali, whereby article 149, being specifically drafted for application in the Area, would take preference over the general provisions set out in articles 303(1), (3) and (4). Article 303(1) imposes a general ‘duty to protect objects of an archaeological and historical nature’ which, though introducing the basic preservation principle, is as uncertain and as susceptible to alternative interpretations as ‘to preserve’ is in article 149. It also calls into question the scope of the State’s ‘duty’ to preserve underwater cultural heritage. Some commentators have given this duty a wide interpretation. O’Keefe gives the term ‘duty to protect’ a wide scope, embracing several activities, such as maintenance of known sites, excavation of archaeological sites in accordance with accepted standards, conservation and display of material, and dissemination of information obtained.157 Strati too gives this a wide interpretation, arguing that the duties may include the provision in national legislation for the following: (i) the obligation for finders of underwater cultural heritage to report the finds to the competent archaeological authorities; (ii) the obligation on the State to take the necessary interim protective measures for the preservation of underwater cultural heritage, even if this involves the suspension of construction projects; (iii) the need to preserve the finds in situ and to avoid unnecessary excavation; (iv) the need for conservation, proper presentation and the restoration of the recovered items.158 Migliorino argues that this duty at least implies the obligation not to destroy, damage or mutilate underwater cultural heritage, and advocated a presumption that the duty will imply in situ protection.159 However, as the Convention does not specifically define the State’s duty, there is, in the absence of any other international convention prescribing State’s duties, no

156 Oxman, op. cit., p. 362; D.R. Watters, ‘The Law of the Sea and Underwater Cultural Resources’ (1983) 48 American Antiquity 808, 813. 157 P.J. O’Keefe and J. Nafziger, ‘The Draft Convention on the Protection of the Underwater Cultural Heritage’ (1994) 25 Ocean Development and International Law 391, 393. 158 Strati, op. cit., p. 124. 159 Migliorino (1995) op. cit., p. 486. Newton, however, argues that the duty imposed on States under article 303(1) is analogous to the duty to salvage property in marine peril. Newton, op. cit., p. 193.

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basis upon which preservation measures can be defined. As article 303(1) applies to all maritime zones, the exercise of this duty to preserve must be confined within the limits of the jurisdictional framework of UNCLOS. Thus, this duty will not allow the coastal State to extend its jurisdiction beyond its territorial waters. Article 303(2) provides that underwater cultural heritage recovered in the contiguous zone will be presumed to result in an infringement of the customs, fiscal and sanitary laws in the coastal State’s territory or territorial sea. This would mean that the recovery itself must be presumed to have occurred in the territory or territorial sea.160 If this presumption were rebuttable, then any State involved in the recovery of underwater cultural heritage from the contiguous zone would only have to prove that they were in fact recovered from this zone to evade the coastal State’s jurisdiction. This result would appear to completely defeat the very purpose of including article 303 in the Convention. As such, this is an absolute presumption, a legal fiction that cannot be rebutted.161 To have simply presumed that the recovery of underwater cultural heritage in the contiguous zone is tantamount to recovery in the territorial sea would have allowed the coastal State to treat the underwater cultural heritage in exactly the same manner as it does underwater cultural heritage actually found in the territorial sea. However, this would have resulted in an expanded set of coastal laws applying to activities in the contiguous zone. In order to ensure that this was not the case, the coastal State’s applicable laws were restricted to those already recognised in article 33, namely the coastal State’s customs, immigration, fiscal and sanitary laws. The presumption is therefore extended so that this recovery would also be presumed to have infringed these laws. It is, however, uncertain whether this presumption is rebuttable, nor is it clear exactly what the scope of these laws are. If it were rebuttable, the recovering State could rebut this presumption by adducing evidence that the recovery was not in fact an infringement of the coastal State’s customs, fiscal or sanitary laws. Given that the article provides that this presumption is made in order ‘to control traffic in such objects’, Dromgoole argues that only in cases where the underwater cultural heritage is imported or exported is there likely to be an infringement of these laws and that the sanitary and immigration regulation would unlikely to be applicable at all.162 Therefore the laws applicable would be narrowly construed so that only the traffic in underwater cultural heritage found in the contiguous zone could be regulated by the coastal State. This would be consistent with the limited function of the contiguous zone. Article 303(2) is also limited to the extent that applies to underwater cultural heritage and its ‘removal from the seabed’, potentially excluding the coastal State’s jurisdiction over activities such as diving on a wreck, filming a wreck, or in some

160 See Strati, op. cit., p. 194. 161 L. Caflish, ‘Submarine Antiquities and the International Law of the Sea’ (1982) 13 Netherlands Lawbook of International Law 20. Caflish argues that in order for the presumption to be rebuttable, article 303 would have had to explicitly state that the presumption was rebuttable, and would apply ‘unless the contrary is proved’. Oxman, op. cit., pp. 353–72; Strati, op. cit., p. 166. 162 Dromgoole, op. cit., pp. 4–45.

Underwater cultural heritage 327 way damaging a wreck.163 It may be that a State will therefore have the right to search for archaeological sites in the coastal State’s contiguous zone, but would have to seek permission before recovering any finds. It has, however, been maintained that the obligation to preserve in 303(1) should, at least, imply that there is a duty not to damage or destroy underwater cultural heritage in the contiguous zone.164 This narrow interpretation of article 303(2) means that the coastal State’s jurisdictional reach will be limited to legislation conforming to the scope of its customs and fiscal legislation that regulates the traffic in underwater cultural heritage removed from the seabed. Other commentators do not share this view. Alexander argues that the coastal States ‘custom, fiscal and sanitary laws’ should be extensively construed so as to include the coastal State cultural heritage regulations.165 Strati argues that not only must this presumption be irrefutable but that the effect of article 303 is to establish an archaeological zone which is not necessarily dependent on the coastal State having declared a contiguous zone. 166 It is argued that as the coastal State is the only State that can regulate the removal of objects from the contiguous zone, it can impose any conditions it feels necessary to comply with its duty under article 303(1) to preserve underwater cultural heritage in this zone (subject to articles 303(3) and (4)), and may therefore be able to extend its cultural heritage laws over the contiguous zone. This would include not only coastal State jurisdiction over the recovery of underwater cultural heritage, but also the search for such objects. This jurisdictional reach, Strati argues, is justified even if a State has not actually declared a contiguous zone. The reasons advanced are that article 303 forms part of the General Provisions of the Convention and not part of the Convention dealing specifically with the contiguous zone, and may therefore give rise to rights and duties under the Convention not specifically related to the contiguous zone. The rights a coastal State has over the recovery of underwater cultural heritage in the contiguous zone are therefore considerably broader than the mere policing rights a coastal State has in respect of the general contiguous zone as laid down in the section on the contiguous zone in the Convention. The fact that the contiguous zone is referred to in article 33 and not specifically referred to in article 303 would appear to reinforce this conclusion.167 Migliorino, however, argues that a

163 Newton, op. cit., p. 187. 164 Migliorino (1995) op. cit., p. 486. 165 For example, Alexander concludes that in the US, the custom, fiscal and sanitary laws would include the Marine Protection, Research and Sanctuaries Act, the National Historic Preservation Act, the 1970 Convention, the World Heritage Convention and the law of salvage. B.E. Alexander, ‘Treasure Salvage Beyond the Territorial Sea: An Assessment and Recommendations’ (1989) 20 Journal of Maritime Law and Commerce 7. 166 Strati, op. cit., pp. 167–8 and 183–4. 167 Nordquist states that ‘the words “in applying article 33” may appear to be ambiguous, but probably, in the light of the legislative history, do not require the coastal State to assert any rights of control under article 33 in exercising its rights under article 303’. M.H. Nordquist,United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. 5, Leiden: Martinus Nijhoff Publishers, 1989, p. 161.

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broad interpretation of article 303(2) is unjustified as, if the conference had intended to allow the coastal State to extend its national jurisdiction over the contiguous zone, ‘a clearer legal solution would have been to assert the jurisdiction of the coastal State over such objects without resorting to the “legal fiction” of article 303(2)’.168 This narrow interpretation is supported by the fact that the major maritime nations did not want to broaden the rights of a coastal State in the contiguous zone, and therefore the right to control the recovery of underwater cultural heritage from this zone was defined in terms of existing coastal State rights, namely the rights to prevent and punish infringements of its customs, fiscal and sanitary laws. The scope of article 303(2), however, remains unclear. State practice is equivocal. While a number of States have extended their cultural heritage law over the contiguous zone, these do not evince any degree of uniformity.169 Article 303(3) states that ‘nothing in the article affects the rights of identifiable owners’. This merely maintains the previous status quo, leaving it up to national legislation to determine. Article 303(3) further states that ‘nothing in this article affects the law of salvage or other rules of admiralty170, or laws and practises with respect to cultural exchanges’. Since a State is, according to article 303(1), under a duty to preserve these objects the application of salvage law must be undertaken in a way that provides such protection. This may give rise to some conflict. For example, traditional salvage law does not require the salvor to obtain prior permission from a State to undertake salvage operations in the contiguous zone. As such, the coastal State would have no way of ensuring that the underwater cultural heritage is preserved when recovered from a salvor in this zone. Article 303(2), however, clearly allows for the coastal State to regulate the recovery of underwater cultural heritage from the contiguous zone, and can therefore impose a requirement that prior permission be obtained, which does not sit easily with articles 303(3)’s confirmation of the application of salvage law. Section 4 has been described as article 303’s saving grace, as it ‘leaves the way open for specific agreement on the underwater cultural heritage’.171 It was intended that article 303(4) would harmonise the rules of the law of the sea with regard to underwater cultural heritage with the content of the emerging law of archaeology and cultural heritage.172 It is in terms of this provision that a more comprehensive convention to preserve underwater cultural heritage was considered by UNESCO. It is evident that in an attempt to reach consensus and produce a convention, the substantive provisions of articles 149 and 303 were left vague and ambiguous, which is really not surprising as their drafting was inconsequential compared to the major issues of the Third United Nations Conference on the Law of the Sea.

168 L. Migliorino, ‘Submarine Antiquities and the Law of the Sea’ (1982) 4 Marine Policy Reports 4. 169 These include France, Tunisia, the Netherlands, South Africa and the US. 170 The term ‘admiralty law’ is peculiar to common law, and was translated from the original English into the other official languages using terms which would indicate that what was meant was ‘commercial maritime law’. Nordquist, op. cit., p. 160. 171 Prott and O’Keefe (1984) op. cit., p. 105. 172 Oxman, op. cit., p. 364.

Underwater cultural heritage 329 At a Conference on the preservation of underwater cultural heritage, held at the National Maritime Museum in February 1995, delegates attempted to formulate an understanding of articles 149 and 303 that States could agree upon. However, the delegates felt that these articles did not have sufficient substance to justify a valid and agreed interpretation as a basis for an implementation agreement. Yet, these articles do represent the only substantive international law applicable to underwater cultural heritage, and contain general applicable principles.173 First, while vague and ambiguous, it is evident that States do have a duty to protect or preserve underwater cultural heritage in various maritime zones beyond coastal State jurisdiction. Second, this duty is undertaken for the benefit of humankind, and third, in fulfilling these duties, States are duty bound to co-operate. These general principles form the basis upon which the UNESCO draft convention is structured. Council of Europe Draft Convention During a debate in the Parliamentary Assembly of the Council of Europe concerning the negotiations at UNCLOS III, it was noted that due to the political and economic concerns of the negotiators, the question of preservation of underwater cultural heritage was likely to receive little attention and therefore be general and superficial.174 The Council’s Committee on Culture and Education examined the issue and prepared a report that included Recommendation 848.175 This recommendation required the Assembly to recommend that the Council of Ministers draw up a draft European convention, and urged member governments to revise their existing legislation to comply with certain minimum recommendations included in the report. Recognising that articles 149 and 303 did not adequately define the underwater cultural heritage to be preserved, the first recommendation was that the definition of underwater cultural heritage should extend to what is included in land heritage legislation to ensure that there were no gaps in the preservation regime and should cover all objects more than 100 years old, with a discretion to include more recent objects of historical importance. The second recommendation corresponded to recommendations made at the time by Greece at UNCLOS III that national jurisdiction over underwater cultural heritage should extend to a 200-mile limit. The third recommendation was that existing salvage law should not apply to underwater cultural heritage. The introducing of this recommendation reflected the growing disparity between the regimes of salvage law and cultural heritage law in the Mediterranean, and the

173 Strati, op. cit., pp. 330–4 includes a summary of the positive and negative factors of the inclusion of articles 149 and 303 in UNCLOS. 174 Dromgoole (1993) op. cit., p. 4–1. 175 Doc. 4200-E, Strasbourg, 1978.

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introduction of the principle of non-economic utilisation of underwater cultural heritage which features so prominently in the UNESCO draft convention.176 In 1982, the concerns of the Council of Europe were realised when UNCLOS III concluded, and the preservation measures contained in the new convention were restricted to two articles that did not address any of the recommendations that the Council had considered necessary. Acting on recommendation 848, an ad hoc Committee of Experts was appointed to draft a European Convention on the Protection of the Underwater Cultural Heritage, which was submitted to the Committee of Ministers in March 1985. Recommendation 848 was unfortunately an ambitious recommendation, and when it came time to produce a convention, which would ultimately bind member States of the Council of Europe, many of the principles of Recommendation 848 were to be sacrificed in order to reach consensus. The regime proposed was limited so as to comply with that established in UNCLOS. Unfortunately, on submission of this draft, a controversy arose between Greece and Turkey concerning territorial application, and Turkey’s subsequent refusal to endorse the draft has not been resolved. Until the draft is signed, the final version and all related documents remain confidential and unavailable for public dissemination, and so it is difficult to ascertain what will become of this draft.

Salvage Convention In 1896, the International Law Association (ILA) founded the Comité Maritime International (CMI) to promote the unification of maritime law. An early task for the CMI was the unification of salvage law, including the principle of ‘no cure, no pay’, in the 1910 Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea. Given the salvage technology at that time, the 1910 Convention was not designed to address the salvage of historic wreck, and was limited to the salvage of sea-going vessel. Following the adoption of UNCLOS, the United Nations specialised agency, the International Maritime Organisation (IMO) convened a diplomatic conference to reconsider the by then outdated 1910 Salvage Convention, and adopted a replacement convention in 1989. However, the 1989 International Salvage Convention did not address the salvage of historic wreck directly. Noting that many States did not apply salvage law to historic wreck, article 30(1)(d) simply allows a State to reserve the right not to apply the Convention ‘when the property involved is maritime cultural property of pre-historic, archaeological or historic interest and is situated on the sea-bed’. The default position therefore is that the International Salvage Convention applies to underwater cultural heritage, unless

176 Other recommendations included: (1) the drawing up of a European Convention and the setting up of a European Group for Underwater Archaeology; (2) a single authority to be given primary responsibility for dealing with land and underwater heritage finds; (3) provision to be made for appropriate enforcement measures; and (4) a determination of the minimum legal requirements that should be incorporated into national legislation.

Underwater cultural heritage 331 specifically excluded. A specific exclusion by way of entering a reservation excludes application of the Convention, but does not necessarily exclude the application of the pre-existing common salvage law. As such, a third option is evident, exemplified by the position taken by the UK. While the UK did enter a reservation in accordance with article 30(1)(d), it has not excluded the application of salvage law from its domestic legislation.177 This cautious approach effectively renders the reservation one that amounts to a reservation to enter a reservation in the future. Until then, the common law of salvage, as amended by the national legislation of the UK, applies. For those States that have not entered a reservation in accordance with article 30(1)(d), and do not intend to become a party to the Underwater Cultural Heritage Convention, the Salvage Convention, and the salvage law it embodies, is effectively the legal regime applicable to underwater cultural heritage in international waters. The fundamental nature of the Salvage Convention is essentially private law. Public law issues were intentionally limited as it was believed that this approach would foster a greater degree of ratification. As such, it regulates the activities of salvors and those with whom they enter into a salvage operation. The Convention does not, however, address questions of the acquisition or loss of ownership, or possession of salved property, and these issues again are determined by the national laws of the State within whose jurisdiction these issues arise. The Convention is restricted to the rights and duties of the parties to the actual salvage operation, and the determination of the salvage award. In this regard, it is unclear whether the Convention superseded the whole of the common law of salvage, but it is submitted that courts may refer to pre-existing common law in order to interpret the Salvage Convention.178

Underwater Cultural Heritage Convention The International Law Association initiative In 1988, the International Law Association (ILA)179 formed a Committee on Cultural Heritage Law. As its first task, the Committee reviewed the preservation measures for underwater cultural heritage in international waters, and concluded that a convention was needed to overcome the difficulties apparent in the provision of UNCLOS. The committee regarded section 303(4) of UNCLOS as

177 Schedule 11 Part 2 para. 2 Merchant Shipping Act 1995 does not exclude the salvage of underwater cultural heritage from its application. 178 For further discussion of the convention, see S. Dromgoole and N. Gaskell, ‘Draft UNESCO Convention on the Protection of the Underwater Cultural heritage’ (1998) 14 International Journal of Marine and Coastal Law 177; N.J. Gaskell, ‘The International Salvage Convention’ (1989) 4 International Journal of Estuarine and Coastal Law 268; R. Shaw, ‘The 1989 Salvage Convention and English Law’ (1996) Lloyd’s Maritime and Commercial Law Quarterly 202. 179 Founded in 1873, the International Law Association is a private non-governmental organisation of persons interested in international law. The headquarters are situated in London and has over 40 branches world-wide.

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authorising the drafting of a new convention and that such a step would fulfil State Parties’ duty as required by section 303(1). The committee produced its final draft in 1994, which was adopted at the 66th Conference in Buenos Aires that year180. The ILA approach to the problem of preserving underwater cultural heritage was characterised by three specific strategies that substantially mirrored those in Recommendation 848. First, the underwater cultural heritage to be preserved was only that which its owners had abandoned, thus attempting to avoid any problems related to private property rights. Second, the preservation regime was based on coastal State jurisdiction, which was extended up to 200 nm from the baseline by the discretionary creation of a cultural heritage zone; and third, traditional admiralty salvage law, which has hitherto been applied to underwater cultural heritage in international waters, was to be excluded. Annexed to the draft was the Charter on the Protection and Management of Underwater Cultural Heritage181 produced by the International Council of Monuments and Sites,182 which sets out benchmark standards for underwater archaeology. As the ILA is a nongovernmental organisation, it considered UNESCO to be the most appropriate organisation to adopt a convention, and the final draft was forwarded to UNESCO for consideration. At a UNESCO regional Seminar on the Protection of Movable Property held in Brisbane in 1966, a statement was issued on the preservation of the underwater cultural heritage which concluded that ‘if positive steps are not taken immediately it is anticipated that the recent advances that have been made by treasure hunters internationally ... will result in a tragic loss of essential and important heritage’.183 Surprisingly, considering the perceived urgency to take positive steps to preserve underwater cultural heritage, it was only in 1993 that the Executive Board of UNESCO requested the Director-General to undertake a feasibility study to consider adopting a new international convention. The work undertaken by the ILA Cultural Heritage Law Committee on producing a draft Convention was noted, and it was decided to wait until a final ILA draft was completed before submitting the feasibility study to the Executive Board of UNESCO.184 Whilst preparing this feasibility study, it became apparent that a number of crucial issues would need further investigation, and that the ILA draft convention, though providing a useful

180 For a detailed discussion of the ILA draft, see P.J. O’Keefe, ‘Protection of the Underwater Cultural Heritage: Developments at UNESCO’ (1996) 25 International Journal of Nautical Archaeology 169; J. Blake, ‘The protection of the underwater cultural heritage’ (1996) 45 International and Comparative Law Quarterly 819. 181 The ICOMOS Charter was ratified by the 11th ICOMOS General Assembly, held in Sofia, Bulgaria, from 5–9 October 1996. 182 Established in 1964 ICOMOS is a non-governmental organisation with special observer status at UNESCO, and whose primary function it is to advise Intergovernmental organisations of the steps necessary to conserve the monuments and sites of the world. 183 The need for an international convention to preserve underwater cultural heritage was also identified by a number of commentators, including Korthals-Altes in 1976. See Korthales-Altes, op. cit., pp. 77–97. 184 Clément (1996) op. cit., p. 311.

Underwater cultural heritage 333 basis for consideration of a new convention, was inadequate and would need substantial amendment. After a number of meetings and drafts, the convention was finally adopted in 2001. While the Director-General of UNESCO had urged the meeting to agree the draft by way of consensus, this could not be achieved, and it was approved by a majority vote, allowing it to be submitted to the 31st General Conference of UNESCO in late 2001 for consideration.185 On 2 November 2001, 87 States voted in favour of the Convention being adopted.186 The Convention entered into force on the 2 January 2009 after the 20th instrument of ratification. The scope of the convention Three issues required consideration in determining the scope of the convention: to what objects should it apply; what activities should it govern, and in which waters should it operate? Defining ‘underwater cultural heritage’ In order to construct a pragmatic preservation regime, it is necessary to determine which objects, sites or other physical entities might be regarded as O’Keefe and subject to the Convention. This is no easy task given the subjectivity in defining the term ‘cultural heritage’. The term ‘underwater cultural heritage’ is of relatively recent origin, having been first used in Recommendation 848 (1978) of the Council of Europe, to mean ‘all remains and objects and any other traces of human existence located entirely or partly in the sea, lakes, rivers, canals, artificial reservoirs or other bodies of water, or recovered from any such environment, or washed ashore …’.187 The Convention utilises the basic structure of this definition. ‘Underwater cultural heritage’ is defined in the Convention as: all traces of human existence having a cultural, historical or archaeological character which have been partially or totally underwater, periodically or continuously, for at least 100 yars such as: (i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context;

185 49 States voted in favour of the draft, four against and eight abstained. 186 Four states (The Russian Federation, Norway, Turkey and Venezuela) voted against adoption while 15 States abstained (including Brazil, Columbia, France, Germany, Greece, Israel, the Netherlands, Paraguay, Sweden, Switzerland, United Kingdom and Uruguay). The United States, not being a member of UNESCO at the time, had no right to vote. For a comprehensive discussion of the negotiating history of each article of the Convention, see R. Garabello, ‘The Negotiating History of the Convention on the Protection of the Underwater Cultural heritage’ in R. Garabello and T. Scovazzi (eds) The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage: Before and After the 2001 UCH Convention, Leiden: Martinus Nijhoff Publishers, 2003, p. 89. For an article by article discussion of the Convention, see O’Keefe (2002) op. cit. 187 Strati, op. cit., p. 10.

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Underwater cultural heritage (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character.

The scope of the definition begins with the exceptionally broad classification of ‘all traces of human existence’. This does, however, begin to act as a limitation on the scope of the Convention in that it does exclude non-human resources, such as paleontological material. It would also exclude natural features that have some cultural significance to a people.188 The wide scope of ‘all traces of human existence’ is then qualified by three important criteria. First, it is only that which has ‘a cultural, historical or archaeological character’. A significant point of contention which arose during negotiations was whether the definition should provide for blanket inclusion of all traces of human existence that have been underwater for over 100 years or whether a significance requirement should be introduced. Some States argued strongly in favour of the latter, and were able to have included in the definition the phrase ‘cultural, historical or archaeological character’ as a qualifying criterion. The interpretation of this phrase is not altogether clear, as a number of States held the view that all that has been underwater for 100 years will have such characteristics by definition, and therefore blanket inclusion is provided for. There is therefore scope for each contracting State to apply some evaluative criteria to limit the scope to that which is considered significant. Second, rather than dealing comprehensively with the kind of objects that might be considered cultural heritage, the Convention focuses on the environment in which the cultural heritage is found by limiting it to that which is ‘partially or totally underwater, periodically or continuously’.189 The use of the four descriptors leaves four possibilities. Most underwater cultural heritage will be totally underwater continuously, especially that which rests in international waters far from the coast. However, a significant proportion of underwater cultural heritage lies in shallow waters or waters subject to great tidal variations. ‘Partially’, coupled with ‘continuously’, will cover that which has a component submerged whilst another part remains above water at all times, such as the wreck of the USS Arizona in the shallow water of Pearl Harbor, Hawaii.190 ‘Partially’ and ‘periodically’ is exemplified by the wreck of the VOC vessel Amsterdam at Hastings, UK, part of which is exposed at low tide.

188 During negotiations, the Archaeological Institute of America had unsuccessfully called for an expanded definition to include non-human archaeological objects, such as Paleo-Indian sites. Reprinted as ‘Comments of the Archaeological Institute of America on the UNESCO Draft Convention on the Protection of the Underwater Cultural Heritage’ (1998) 7 International Journal of Cultural Property 538; L.V. Prott, and I. Srong (eds), Background Materials on the Protection of the Underwater Cultural Heritage, Paris: UNESCO/Nautical Archaeology Society, 1999, p. 174. 189 The definition is derived from the ILA definition, which itself was based on the 1985 European draft Convention. 190 Though not having been submerged for over 100 years, it does illustrate the way in which a vessel may be partially submerged.

Underwater cultural heritage 335 Third, underwater cultural heritage is only that which has been submerged for 100 years. This period is somewhat arbitrary and based more on administrative pragmatism than on archaeological, cultural or historical significance. There was, however, some consensus during negotiations that objects older than 100 years are more likely than not to be archaeologically or historically significant.191 Whilst the Convention does not indicate from what point in time this period is to be measured, it may be presumed, given that one of the aims of the Convention is to promote in situ preservation, that this should be calculated from the time that any activity is directed at the underwater cultural heritage, and not merely from the time of discovery. While the definition suggests that only that which has actually been submerged, partially or totally, for 100 years will covered, given the rising sea levels, the risk arises that archaeological sites will become inundated, and fall outside the scope of the Convention. The scope of the definition is further restricted by the use of the listed examples, from ‘sites, structures, buildings, artefacts and human remains’ to ‘objects of prehistoric character’. The lists serve only as examples of what is most likely to be found underwater and be of cultural, historical or archaeological character. It is therefore not an exhaustive list of underwater cultural heritage. Finally, the definition excludes pipelines and cables placed on the seabed, as well as any installations other than pipelines and cables, placed on the seabed and still in use, from the definition.192 Warships and other State owned vessels It is axiomatic that remains of State vessels,193 particularly warships, of the past may fall within the broader term ‘cultural heritage’ and should therefore be recovered in an archaeologically sound manner.194 The ILA draft convention, however, had been designed only to apply to abandoned vessels. The question then arose as to whether the criteria for abandonment of ‘State vessels’ differed in any respect to that of privately owned merchant vessels. While a number of maritime nations expressed the view that States do not abandon their property without an express declaration, there is clearly no international law rule governing the criteria for

191 A number of States have used time periods as a criteria for protection, including the Netherlands (50 years); Denmark (100 years); Norway (100 years); Sweden (100 years); and Greece (all underwater cultural heritage dating from prior to 1453, and those underwater cultural heritage from 1453 to 1830 on the advice of the Archaeological Council). The use of the 100 year time limit is also apparent in a number of international conventions and recommendations, including the 1970 Convention and the 1985 European Convention on Offences Relating to Cultural Property. 192 Article 1(1)(b) and (c). 193 For convenience, the term’ State vessels’ will refer to ‘any warship, naval auxiliary, other vessel or aircraft owned or operated by a state for non-commercial purposes’. 194 For example, the majority of wreck designated as being of historical or archaeological importance in UK territorial waters between 1973 and 1995 are warships. See also Dromgoole and Gaskell (1988) op. cit., pp. 186–7.

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abandonment of State owned vessels.195 Nevertheless, given that the scope of the Convention was to be limited to only abandoned vessels, this assumption held sway and the draft convention provided that it would ‘not apply to the remains and contents of any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, at the time of its sinking, only for government noncommercial purposes’.196 During negotiations at UNESCO, however, the limiting criterion of abandonment was rejected, effectively bringing State vessels within the Convention’s scope. While the ownership aspect was therefore no longer an issue, the exclusive jurisdiction that the State has over its sovereign vessels then became an issue for consideration, with a number of States calling for the exclusion of such vessels.197 The policy that guides the application of the principle immunity of State owned vessels is based on mutual respect for each sovereign State’s armed forces and governmental activities. Articles 95 and 96 of UNCLOS govern the absolute immunity from jurisdiction of State owned vessels.198 This immunity is extended to the salvage of such vessels.199 While this application of State immunity is without doubt, it is uncertain whether this continues to apply after the vessel has sunk and a number of commentators have opined that sunken vessels cease to be ships and are therefore no longer under the exclusive jurisdiction of the flag State.200 If this is the case, then articles 95 and 96 will no longer apply, and State owned vessels will be subject to the same jurisdictional regime as other wrecks. Most of the maritime nations, however, opposed any such inference. While there are legitimate security and national intelligence reasons for granting exclusive flag State jurisdiction in the case of recently sunken State owned vessels, these considerations do not, however, apply to sunken State owned vessels that fall within the definition of underwater cultural heritage. Irrespective of whether or not a vessel was used for military purposes or was a State owned or operated vessel, it may still be of archaeological or historical importance. As the aim of the Convention is to

195 J.A. Roach, ‘Sunken warships and military aircraft’ (1996) 20 Marine Policy 351; D.J. Bederman, ‘Rethinking the Legal Status of Sunken Warships’ (2000) 31 Ocean Development and International Law 97; C.J.S. Forrest, ‘An International Perspective on Sunken State Vessels as Underwater Cultural Heritage’ (2003) 34 Ocean Development and International Law 41. 196 CLT-96/CONF.202/5 Rev. 2, Paris, July 1999. 197 These included US, UK, and Spain. 198 Article 95, headed ‘Immunity of warships on the high seas’ states that; ‘[w]arships on the high seas have complete immunity from the jurisdiction of any State other than the flag State’. Article 96, headed ‘Immunity of ships used only on governmental non-commercial service’ states that; ‘ships owned or operated by a State and used only on governmental non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the Flag State’. 199 They are exempt from the 1910 Brussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea and the 1989 International Convention on Salvage. 200 Caflish, op. cit., p. 25; and L. Migliorino, ‘The Recovery of Sunken Warships in International Waters’ in B. Vukas (ed.), Essays on the New Law of the Sea, Zagreb: Sveucilisnanaklada Liber, 1985, p. 251.

Underwater cultural heritage 337 preserve underwater cultural heritage by requiring the application of appropriate archaeological practices to the vessels, there is little reason why such vessels should not be included in the Convention. Application of the principle of State immunity to vessels of antiquity is particularly problematic, not only because article 29 of UNCLOS,201 which defines warship for the purposes of that Convention, is inappropriate as a definition for warships of earlier centuries, but also because it may be difficult to determine whether a particular historic wreck was in fact a ‘State owned vessel’.202 There could be a number of reasons for this. A wreck site may be so old that it predates any conception of ‘the State’ in international law, and no existing State can claim to be the flag State.203 Alternatively, the original flag State may no longer exist as a separate entity, but has been broken up into smaller nation-States or subsumed within a larger State. It may also be that there is simply no historical evidence available to determine ownership of the vessel. The resulting provision regarding State vessels reflects the difficulties in determining the existing legal framework with regard to abandonment and sovereign immunity and the difficulties in reaching a compromise between flag States and coastal States. The general principles of the Convention include article 2(8), which merely states that: Consistent with State practice and international law, including the United Nations Convention on the Law of the Sea, nothing in this Convention shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities, nor any State’s rights with respect to its State vessels and aircraft. Given that the question of the abandonment and sovereign immunity of sunken warships is uncertain, this general principle simply maintains the uncertainty status quo. The Convention does, however, go some way in determining what, for the purpose of the Convention, a warship or other State vessel is. The definition contained in the Convention declares that: ‘State vessels and aircraft’ means warships, and other vessels or aircraft that were owned or operated by a State and used, at the time of sinking, only for governmental non-commercial purposes, that are identifiable as such, and that meet the definition of underwater cultural heritage.

201 Article 29 of UNCLOS reads: ‘[f]or the purposes of this Convention, “warships” means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under the regular armed forces discipline’. 202 This applies to cases such as privateers, as well as to early vessels, such as those of the Vikings. 203 This would apply in particular to vessels of antiquity, and include such famous sites as the Uluburun, Geledonyia and Antikythera wreck sites.

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It is clear that only State vessels that have sunk within the last 100 years are not included in the Convention and that only those State vessels that can be identified as such are subject to the State vessel regime of the Convention. Those that cannot be clearly identified as State vessels will therefore be regarded as ordinary underwater cultural heritage to which the Convention applies. While this does not solve the problems associated with the determination of whether a shipwreck is indeed that of a State vessel, the shifting of the onus of proof onto a State to clearly be able to identify it as such ensures that all questionable shipwrecks are included in the normal regime. A number of State owned vessels are warships that have sunk in the course of battle, with the loss of service personnel.204 The concern is that these vessels should either not be disturbed, or if so, should be given appropriate respect. Warships that have sunk within the last 100 years will not fall within the scope of underwater cultural heritage, and will therefore not fall within the scope of the Convention. Any attempt to protect such a vessel in international waters will have to make use of bi-lateral or a further multi-lateral treaty. However, vessels that have been submerged for more than 100 years may be considered to be a war grave. Whether such a vessel should be designated as a war grave really depends on the reason for this designation. In most cases, no human remains will be found on these vessels so, in effect, no discernible grave exists.205 The archaeological recovery of these vessels according to the rules in the Annex will therefore not disturb any remains. If, however, remains do exist, they should be removed with due respect in accordance with standards laid down in the Annex.206 As such, the general principles of the Convention require State Parties to ensure that proper respect is given to all human remains located in maritime waters.207 Identifying the activities to be regulated While archaeologists, treasure salvors and sport divers have a direct interest in underwater cultural heritage, other sea-users have an indirect interest, such as harbour and coastal developers, commercial fishermen and cable laying entities.208 However, in most cases these effects are caused inadvertently.

204 For a discussion of the status of war graves in the UK, see M. Williams, ‘War Graves and Salvage: Murky Waters?’ (2000) 5 International Maritime Law 151. 205 Though there are exceptions. Human remains have been found to exist on underwater cultural heritage sites, especially wrecks, which were lost over 100 years ago. For example, human remains were discovered on the site of the Mary Rose, which sank in 1545. See McKee, op. cit. 206 Reference may be made to the International Council of Museums Code of Ethics (1986) and the Museums Association (UK) Code of Ethics for Museum Professionals (1977, amended 1987) which require ethical and legal consideration to be given to recovery of human remains. 207 Article 2(9). 208 Fishing, construction and coastal development all threaten underwater cultural heritage. Reports of damage to underwater cultural heritage from fishing nets and beam trawling are numerous. Some examples include damage to the Stirling Castle in the Goodwin Sands, UK and the Vliegend Hart, a Dutch East India Co. ship sunk off Holland.

Underwater cultural heritage 339 These industries were reluctant to acknowledge the danger their activities posed to underwater cultural heritage, and States conscious of the importance of these industries in their economies were similarly eager to downplay their destructive effects. During negotiations, the Canadian delegation stated that ‘the main thrust of the proposed convention should be to deal with treasure hunters or dive expeditions which focus on underwater cultural heritage, and not such activities as commercial fishing or cable-laying which only incidentally affect it’.209 This view prevailed and the Convention essentially created two regimes; one that addresses inadvertent activities that might affect underwater cultural heritage; and one directed at those who intentionally seek to find and possibly recover artefacts from underwater cultural heritage sites. Inadvertent activities, called ‘activities incidentally affecting underwater cultural heritage’ in the Convention, are defined as ‘activities which, despite not having underwater cultural heritage as their primary object or one of their objects, may physically disturb or otherwise damage underwater cultural heritage’.210 States are then required to ‘use the best practicable means at its disposal to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting underwater cultural heritage’.211 This article leaves the determination of the ‘best practicable means at its disposal’ to each individual State. Given the inherent conflict that may arise between the protection of underwater cultural heritage and the economic utilisation of the resources of the sea or seabed, it is feared that this article provides too weak an obligation on States to provide for an effective protection regime. The geographical scope The ILA conceived of this Convention as one that would apply to underwater cultural heritage in international waters.212 In the territorial waters and its internal waters, it was recognised that the coastal State has absolute sovereignty and that the Convention would not impose any duties on the coastal State. During negotiations at UNESCO, it was quickly agreed that the Convention should apply to all maritime zones, particularly the territorial sea. A number of States, however, went further, and called for the application of the Convention and its archaeological standards to the recovery of underwater cultural heritage in any waters, including internal waters, such as lakes, rivers and fiords. Some confusion arose during negotiations as to the meaning of the term ‘internal waters’. Within the law of the sea context, ‘internal waters’ means ‘waters on the landward side of the baseline of the territorial sea’213 and therefore has an exclusive

209 Comments of Canada working paper distributed at the Second Meeting of Governmental Experts, UNESCO Headquarters, Paris, 19−24 April 1999. 210 Article 1(7). 211 Article 5. 212 O’Keefe and Nafziger, op. cit., p. 14. 213 Article 8, UNCLOS.

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maritime character. Geographical internal waters, which include rivers, lakes and dams are therefore not ‘internal waters’ in this context. Nevertheless, a number of delegations did argue that the standards that will be made applicable to the recovery of underwater cultural heritage in the maritime zones covered by the Convention should also apply to the underwater cultural heritage in the geographical internal waters. Given the fact that a State has absolute sovereignty in its territory, any State may, if it so wished, can apply the provision of the Convention to underwater cultural heritage in its inland waters. The Convention simply acknowledges this power in article 28, which provides that ‘[w]hen ratifying, accepting, approving or acceding to this Convention or at any time thereafter, any State or territory may declare that the Rules shall apply to inland waters not of a maritime character’. Good archaeological practice The general aim of the science of archaeology is to construct pictures of past cultures and societies and their ways of life through interpretation of scientifically gathered evidence. The relationship between the archaeological material and the culture that manufactured it can only be accurately determined through the application of scientific theory and techniques. These techniques include inter alia, survey, sampling, excavation, preservation and reconstruction. Other scientific disciplines, such as palaeobotany, dendrochronology, isotope analysis, thermo luminescence and carbon dating are of invaluable assistance in archaeological interpretation. The term ‘underwater’, when applied to archaeology, describes an environmentally-imposed technique rather than a subject in its own right. Underwater cultural heritage and underwater archaeology differ from terrestrial cultural heritage and archaeology in a number of ways. First, due to the marine environment, underwater cultural heritage is often very well preserved, though extremely fragile, requiring long, expensive and complex conservation techniques. Second, in the case of shipwrecks, the wreck and its contents can be considered a ‘time-capsule’ to the extent that, at the time of sinking, the wreck captures a point in time in history. All the artefacts at the site will have the same time reference, improving their contextual interpretation. Preservation in situ and of the integrity of an underwater cultural heritage collection are therefore paramount concerns. Third, the nature of the marine environment dictates the use of techniques and tools different from those used by archaeologists in terrestrial excavation. Indeed, for excavation on the deep seabed, the techniques and tools are also vastly different from those used in shallower depths.214 Derived from equipment developed for commercial activities such as oil exploration, the equipment needed for a deep-sea excavation is

214 For example, the first deep water archaeological excavation using only remotely operated vehicles was undertaken on the wreck of a 1622 Spanish caravel, 1,300 ft down in international waters off the coast of Florida, in the 1980s. See Pickford, op. cit., p. 54.

Underwater cultural heritage 341 extremely complex and expensive, and is often unaffordable by governments, particularly those of developing States. The primary aim of the Convention, the preservation of underwater cultural heritage, can only be achieved if appropriate scientific techniques are made applicable to any interaction with underwater cultural heritage. As a direct response of the decision by UNESCO to proceed with the drafting of a Convention, ICOMOS drafted the Charter on the Protection and Management of underwater cultural heritage. It represents the benchmark standard for underwater archaeological excavations and concerns matters such as project design, standards of preliminary investigations, project methodology and techniques, project time-tabling, competence and qualifications of personnel, material conservation, site management, project documentation, curation of project archives and the dissemination of project results. These technical standards of good archaeological practice were generally considered acceptable to the majority of States, bar one exception. This related to the inclusion of the principle of non-commercialisation of underwater cultural heritage, considered below. The ICOMOS Charter, having been drafted by a non-governmental organisation, could not be the subject matter of a binding international agreement, nor annexed to a binding international agreement. In order for the provisions of the Charter to be binding, they had to be subjected to negotiation and agreement by State Parties to the UNESCO negotiations. As such, the Charter was regarded, much like the ILA draft, as a blueprint from which negotiations could begin. The resulting Annex is substantially similar, but not identical, to the provisions of the Charter, and is incorporated into the Convention by article 33, which provides that the ‘Rules annexed to this Convention form an integral part of it and, unless expressly provided otherwise, a reference to this Convention includes a reference to the Rules’. In situ preservation A guiding principle of the Convention, contained both in article 2 and in Rule 1 of the Annex, is that in situ preservation of underwater cultural heritage ‘shall be considered as the first option before allowing or engaging in any activities directed at this heritage’. This principle reflects the recognition that before the underwater cultural heritage is disturbed or recovered, an appropriate archaeological investigation is undertaken according to the Rules in the Annex, and that any decision to disturb or recover underwater cultural heritage is taken ‘for the purpose of making a significant contribution to protection or knowledge or enhancement’ of underwater cultural heritage.215 The principle of in situ preservation does not therefore mean that underwater cultural heritage is never recovered; only that it is recovered for a sound reason, and only after appropriate pre-disturbance archaeological investigation has been undertaken. Preserving underwater cultural

215 Rule 1, Annex.

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heritage in situ may, for example, expose it to risk of illicit excavation. For example, a number of cannon disappeared from the wrecks of both the VOC Amsterdam and the royal yacht Mary, due to the inadequate protection afforded by the Merchant Shipping Act of 1894.216 More recently, cannon have been stolen from the archaeological site of an eighteenth-century shipwreck off the coast of Florida during a break in the excavation work.217 In such a case, recovery may be warranted, as it might be if the wreck or artefacts are exposed by a storm and at risk of destruction by subsequent storms or environmental conditions. The place of salvage law and the law of finds As discussed earlier in this chapter, salvage law has not been able to preserve the archaeological value of underwater cultural heritage. Salvage law allows the salvor to maximise the economic value of the underwater cultural heritage to the detriment of the realisation of its archaeological value. For this reason, the introduction of appropriate standards of underwater archaeological practice has been regarded as requiring the elimination of salvage law as the applicable legal regime. Addressing the application of salvage law to underwater cultural heritage necessitated complex and protracted negotiations. Unfortunately, this has led to provisions in the Convention which are vague and susceptible to alternative interpretations. The opposition to the application of salvage law to underwater cultural heritage was summarised in the official commentary to the International Law Association’s draft article, which stated: It should be noted that the law of salvage relates solely to the recovery of items endangered by the sea; it has no application to saving relics on land. For underwater cultural heritage, the danger has passed; either a vessel has sunk or an object has been lost overboard. Indeed, the heritage may be in greater danger from salvage operations than from being allowed to remain where it is. The major problem is that salvage is motivated by economic considerations; the salvor is often seeking items of value as fast as possible rather than undertaking the painstaking excavation and treatment of all aspects of the site that is necessary to preserve its historic value.218 It is therefore argued that salvage law is at odds with the preservation of underwater cultural heritage. This does not mean that underwater cultural heritage does not, or should not, embody an economic value, only that salvage law, as the

216 See Korthals-Altes, op. cit., p. 92. 217 See also M. Horsnell, ‘Wreck Plunderers Find Way Through Law on War Graves: Battleship Royal Oak’, The Times, 4 April 1994; D. Scanlan, ‘Pirates Sink Low, Steal Cannons From St. Augustine Shipwreck’, Florida Times-Union, 4 August 1999. 218 O’Keefe and Nafziger, op. cit., p. 408.

Underwater cultural heritage 343 means of realising the economic value, is inappropriate because it causes an imbalance between the realisation of the economic and archaeological values of underwater cultural heritage. The development of the non-commercialisation clause The ILA draft made it clear that the commercialisation of efforts to recover underwater cultural heritage was regarded as a growing threat to this archaeological resource. It was not just unregulated or irresponsible commercial recovery operations that the ILA considered a threat, but commercialisation per se. The ILA therefore simply disallowed the commercialisation of cultural heritage, which naturally ruled out the application of salvage law.219 Similarly, the ICOMOS Charter unequivocally declares that the commercial exploitation of cultural heritage is fundamentally incompatible with its preservation. From the first round of UNESCO negotiations, however, there has been opposition to this sentiment, and it led the Convention drafters to a more equivocal position statement, one that prohibited only that commercial exploitation which would result in the irretrievable disposal of recovered artefacts. Thus, only in this limited instance would commercial exploitation conflict with the rules in the Annex. Commercial exploitation of a collection would be acceptable so long as a salvor exhibited or sold the recovered artefacts together. During the UNESCO negotiations, it was also recognised that, while cultural heritage may be of archaeological value, and therefore ideally immune from commercial exploitation, there might be instances when such commercial exploitation would be in the public interest. This led to the suggestion that the mandatory language on this subject should be abandoned in favour of language, leaving discretionary the exclusion of commercial incentives. It was prior to the third meeting of experts that the UNESCO secretariat produced the negotiating draft. In Rule 2 of this draft there were two important alterations. The first made the irretrievable dispersal of cultural heritage an alternative to trade or speculation of cultural heritage, rather than a consequence of trade or speculation. Thus, in the negotiating draft, commercial exploitation of cultural heritage either for trade or speculation or its irretrievable dispersal would be fundamentally incompatible with the preservation and proper management of cultural heritage. This change reflected a more anti-commercial bias than had influenced the second meeting of experts. The other important alteration stemmed from the difficulty of divorcing the provision of commercial services during an excavation from the justification of an excavation. Professional archaeologists are paid to undertake scientific investigations, thus making their activity economic in nature. Similarly, the provision of services, such as the supply of diving equipment, remote-sensing devices, etc., could all be supplied by a commercial enterprise. In order to ensure that these commercial services would be authorised,

219 Ibid., p. 404.

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the negotiating draft provided that commercial exploitation of cultural heritage for trade or speculation, other than in the provisions of services, was fundamentally incompatible with the preservation and management of cultural heritage. The resulting provisions in the Annex reflect the difficulty in eliminating the economic value of cultural heritage, and divorcing cultural heritage from an economic context. Rule 2 of the Annex reads as follows: The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods. It is clear that this rule attempts to ensure that artefacts cannot be regarded as commercial goods. However, this rule has been qualified in that it goes on to declare that his Rule cannot be interpreted as preventing: a the provision of professional archaeological services or necessary services incidental thereto whose nature and purpose are in full conformity with this Convention and are subject to the authorisation of the competent authorities; b the deposition of underwater cultural heritage, recovered in the course of a research project in conformity with this Convention, provided such deposition does not prejudice the scientific or cultural interest or integrity of the recovered material or result in its irretrievable dispersal; is in accordance with the provisions of Rules 33 and 34; and is subject to the authorisation of the competent authorities.220 Rule 2(a) reflects the difficulty of divorcing the provision of commercial services during an excavation from the justification of an excavation. Professional archaeologists are paid to undertake scientific investigations, thus making their activity economic in nature. Similarly, the provision of services, such as the supply of diving equipment, remote sensing devices, etc., could all be supplied by a commercial enterprise. Thus Rule 2(a) was introduced to ‘make specific provisions to ensure that it was clear that (in summary) professional archaeological services consistent with the Convention were not being referred to in this Rule’.221

220 Rule 33 states: ‘The project archives, including any underwater cultural heritage removed and a copy of all supporting documentation shall, as far as possible, be kept together and intact as a collection in a manner that is available for professional and public access as well as for the curation of the archives. This should be done as rapidly as possible and in any case not later than 10 years from the completion of the project, in so far as may be compatible with conservation of the underwater cultural heritage’. Rule 34 states: ‘The project archives shall be managed according to international professional standards, and subject to the authorisation of the competent authorities’. 221 CLT-2000/CONF.201/10, Paris, 7 July 2000, p. 2.

Underwater cultural heritage 345 While the first sentence of Rule 2 is an attempt at clarity on the issue, subsection (b) muddies the water to such an extent as to make any interpretation possible. The failures to define ‘deposition’ and identify the place of deposition leave unfortunate ambiguities. This subsection requires that a collection of cultural heritage can be deposited in either a private or a public collection (together with the project archive as far as possible), and that such a deposition shall not be considered as the commercial exploitation of underwater cultural heritage. Respecting the commercialisation of underwater cultural heritage, subsection 2(b) could be viewed as an exception to the general rule, so that a collection of underwater cultural heritage, excavated according to the remaining rules in the Annex, and with appropriate authority from a State’s authority could be sold, as a collection, to a private or public museum, for a profit. While this may be an appropriate compromise, it does appear to be at odds with article 2(7), which embodies the general principle that underwater cultural heritage ‘shall not be commercially exploited’. In such circumstance, the general principle should dictate the interpretation of the rule, which leaves the exceptions in Rule 2 ambiguous at best, but more probably void for their inconsistency. Further ambiguity arises in that the preamble to the Convention does not say explicitly that the commercialisation of historic wrecks is a threat; it only identifies commercialisation as a factor prompting concern. The inclusion of this rule as a general principle in the Annex, which is otherwise a set of technical standards of archaeological practice, is also unfortunate. Although favouring in situ preservation, the annex does not necessarily prohibit recovery of underwater cultural heritage and determines the standards of such an operation. It should not, however, necessarily determine the reasons for this recovery. The reasons may be political in nature and inappropriate for a technical standard setting convention. The development of the salvage law clause The preservation regime established in the Convention is centred on the attempt to preserve the archaeological value of underwater cultural heritage by eliminating its commercialisation. This strategy was both politically unacceptable to a number of States, and impractical given the difficulties of policing the oceans and restricting the flow of illicitly excavated underwater cultural heritage.222 Some States also consider that the economic value of underwater cultural heritage could be an incentive for the search for, and recovery of, underwater cultural heritage in a manner that may realise both the economic and archaeological value of

222 Policing underwater sites is extremely difficult, more so in international waters. A number of instances have been reported which relate to theft from underwater cultural heritage sites protected by national laws. See, for example, the theft of a cannon from the fifteenth-century historic shipwreck protected under the Protection of Wrecks Act 1973 in the UK. K. McDonald, ‘Breech of the law’ Diver, December 1999, p. 75. See also ‘Wreck plunderers find way through law on war graves: Battleship Royal Oak’, The Times, 4 April 1994 and ‘Divers Looting Sunken D-Day War Graves’, The Independent, 31 October 2000.

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underwater cultural heritage.223 As such, the place of salvage law in the Underwater Cultural Heritage Convention was the subject of complex and protracted negotiations, leading, unfortunately, to an article which, in an attempt to reach consensus and compromise, is left vague and susceptible, intentionally, to alternative interpretations. Article 4 provides that: Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds, unless it: a b c

is authorised by the competent authorities; is in full conformity with this Convention; ensures that any recovery of the underwater cultural heritage achieves its maximum protection.

Article 4 is structured in a similar way as to Rule 2, in that it opens by declaring a clear rule, which is then made subject to exceptions which have the effect of negating not only the clarity of the opening rule but the very essence of the rule itself. In this case, article 2 provides that salvage law can be applied to underwater cultural heritage if it is in full conformity with the Convention. Given that the application of salvage law to the recovery of underwater cultural heritage is fundamentally incompatible with professional archaeological practice as expressed in the Annex, it is difficult to see how salvage law could be conducted so as to conform to the Convention. It is submitted that this article will have the effect of undermining the Annex and allow States to interpret these rules so as to allow the continuation of the application of a modified salvage law to underwater cultural heritage. While salvage law is indeed antithetical to the preservation of the archaeological value of underwater cultural heritage,224 it does not necessarily follow that the economic utilisation of underwater cultural heritage also occupies such a position. This distinction was not always grasped during negotiations, and opposition to the commercialisation of underwater cultural heritage fostered debate about salvage law. As a result of this confusion, the Underwater Cultural Heritage Convention proclaims as a general principle that underwater cultural heritage shall not be subject to commercialisation, yet certain provisions of the Convention, including the rules of the Annex, do not clearly implement this principle, but in fact allow for the application of salvage law in some circumstances. This is an unfortunate result. Clearly, it would have been preferable to recognise instead that commercialisation in some circumstances should be supported, while ruling out the application of salvage law as a mechanism for this commercialisation.

223 Particularly the US and UK. 224 Salvage law is not, however, without its advocates. Brice, for example, states that ‘were salvage never to apply to underwater cultural heritage then the responsible professional salvor would be driven from the scene and the piratical adventurer encouraged’. Brice, op. cit., p. 342.

Underwater cultural heritage 347 The jurisdictional structure The primary aim of the Convention is to provide some measure of protection for underwater cultural heritage found beyond States’ territorial jurisdiction. The question of jurisdiction in relation to underwater cultural heritage had been a matter of controversy at UNCLOS III, had stalled the 1985 European draft convention and had restricted the 1992 European Convention to areas over which States had already declared jurisdiction. It was therefore no surprise that the ILA proposal to extend coastal State jurisdiction over underwater cultural heritage found within 200 nm from the coastal State would be controversial.225 While coastal States clearly have jurisdictional competence to protect underwater cultural heritage within its territorial waters, the protection regime proposed by the ILA and included in the first UNESCO draft of the Convention proposed that the coastal State could have a discretionary right to extend its jurisdiction with regard to underwater cultural heritage over an area co-extensive with the continental shelf. This extension of jurisdiction was strongly opposed by the world’s maritime powers, arguing that nothing should be done to threaten the delicate balance created in UNCLOS with respect to the delimitation of rights and duties of coastal States and the freedom of the high seas. In particular, this proposal was criticised as amounting to ‘creeping jurisdiction’. Those States that advocated extended coastal State jurisdiction argued that the extension was in full conformity with UNCLOS as it did not detract from existing rights and duties. Negotiations were hampered by the fact that States’ views with regard to jurisdiction were polarised, and interpretations of UNCLOS irreconcilable.226 In particular, protracted debate concerned the extent to which the proposed extension of coastal State jurisdiction was compatible with the provisions of UNCLOS. By the conclusion of the second meeting of experts in 1999 it was clear that it was unlikely that agreement would be reached on the jurisdiction issues as it was then being debated. Given the difficulties of extending coastal State jurisdiction and the impasse created at the end of the second meeting, a proposal was made at the third meeting in 2000 that concentrated on the areas of co-operation, notification and collaboration, that were generally non-contentious issues, and could possibly form the foundation on which a shared jurisdiction structure could be built. Article 303(1) of UNCLOS requires States to co-operate in the protection of underwater cultural heritage. This international duty is the foundation upon which the Convention is based, and the duty to co-operate is evident in both the preamble227 and inherent in the general principle articulated in article 2(2). This duty of co-operation is given specific meaning in article 19, which requires States to consider collaborating in activities directed at underwater cultural heritage, as well as

225 O’Keefe and Nafziger, op. cit., p. 400. 226 For a more detailed discussion on the drafts of the Convention and UNCLOS, see P. FletcherTomenius and C. Forrest, ‘The Protection of the Underwater Cultural Heritage and the Challenge to UNCLOS’ (2000) 5 Art Antiquity and Law 125. 227 Tenth recital.

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with regard to the sharing of information regarding seized underwater cultural heritage and the training and transfer of technology relating to underwater cultural heritage. From this principle of State co-operation emerged the jurisdictional regime in the Convention. While it was clear that, on the continental shelf and exclusive economic zone UNCLOS did not grant the coastal State rights or duties with respect to underwater cultural heritage, it was recognised that the coastal State was best placed to provide surveillance and policing measures for underwater cultural heritage found in these zones, and should take the position of co-ordinating State in determining how the underwater cultural heritage should be protected. The resulting jurisdictional structure of the Convention relies on the principles of nationality and flag State jurisdiction rather than on any extension of coastal State jurisdiction over maritime zones beyond the contiguous zone. As the coastal State did not have exclusive sovereignty in these zones, the rights of the flag State were to be given greater regard than in the territorial waters of the coastal State. The resulting balance is that ‘no activity directed as State vessels and aircraft shall be conducted without the agreement of the flag State and the collaboration of the Coordinating State’.228 The regime is divided into two parts, the first dealing with reporting and notification in the exclusive economic zone and on the continental shelf229 and the second with the implementation of the protection regime to underwater cultural heritage in these areas.230 With regard to notification and reporting, a complex system is structured to ensure that all interested States will be notified of the discovery of, or plans to undertake any activities directed at, underwater cultural heritage in these maritime areas. Coastal States are required to ensure that their nationals or vessels flying their flag report finds or intended activities to it.231 Other States whose nationals or flag vessels find or intend to undertake activities directed at underwater cultural heritage on another State’s continental shelf or exclusive economic zone are required to report to its competent authorities and to the authorities of the coastal State. Alternatively, the other States need only require that the report be made to it and it undertakes to inform the coastal State.232 States are then bound to inform the Director-General of UNESCO of any finds or reports of intended activities directed at underwater cultural heritage, who in turn informs all other States of any reports received.233 Any State with a verifiable link, especially a cultural, historical or archaeological link with the underwater cultural heritage in question, may then declare its interest in being consulted on how the underwater cultural heritage may be effectively protected.234

228 229 230 231 232 233 234

Article 10(7). Article 9. Article 10. Article 9(1)(a). Article 9(1)(b). Article 9(3) and (4). Article 9(5).

Underwater cultural heritage 349 In terms of providing for a preservation regime in conformity with the Convention for underwater cultural heritage on a coastal State’s continental shelf or exclusive economic zone, the coastal State is not granted exclusive jurisdiction, but rather is designated as the ‘co-ordinating State’ in the preservation regime.235 As such it is responsible for the co-ordination with all other interested States in the protection regime, and may implement the agreed upon measures of protection, including the conducting of preliminary research and all subsequent authorisation allowing activities directed at the underwater cultural heritage.236 Furthermore, the Convention allows the coastal State to take all practical measures to prevent immediate danger to underwater cultural heritage, include looting, before consultations with interested States take place.237 These practical measures are, however, limited to the extent that they are in conformity with existing powers of coastal States in international law. This may therefore only apply to its national and flag vessels and to any other national or vessels only with the agreement of their State. The coastal State only has the power to unilaterally prevent or authorise activities directed at underwater cultural heritage on its continental shelf or contiguous zone in order to prevent interference with its sovereign rights and jurisdictions as provided for by international law,238 including UNCLOS. With regard to underwater cultural heritage found in the Area, which is defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’, the system for reporting, notification and implementation of the preservation regime is substantially similar to that applicable to the continental shelf and exclusive economic zone, except that, as there will not be a coastal State to assume the role of co-ordinating State, all States which have expressed an interested in being a party to a preservation regime will elect one State to act as the co-ordinating State.239 When the vessel found in the Area is a State vessel, the exclusive jurisdiction of the flag State is recognised.240 While this system of co-ordinated jurisdiction was a necessary compromise on which to base the protection regime, it is unfortunate in that it is overly bureaucratic and potentially time consuming. The implementation of a timely and effective protection regime may be hampered by the necessity of agreeing upon the regime by any number of States. The determination of which States will be able to participate in discussion on the regime is also hampered by uncertainties regarding the basis for the determination of a verifiable link to the underwater cultural heritage and the body responsible for this determination. Given the international nature of seafaring, it is possible for a number of States to have such a link, requiring complex negotiations on the structure of a protection regime amongst numerous States.

235 236 237 238 239 240

Article 10(3). Article 10(5). Article 10(4). Article 10(2). Article 12 and 13. Article 12(7).

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Within the territorial waters of a coastal State241, the exclusive jurisdiction of the coastal State remains unquestioned.242 Nevertheless, the coastal State, by becoming a signatory to the Convention, becomes duty bound to apply the rules of the Annex in its territorial waters.243 The coastal State’s exclusive jurisdiction over the remains of another State’s sovereign vessel in its territorial waters was, however, the subject of complex negotiations. The final compromise reached is found in article 7(3) and simply requires the coastal State to inform the flag State of the discovery of any of the latter’s State vessels in the former’s territorial waters.244 The coastal State is clearly recognised as having exclusive jurisdiction in its territorial waters and that there is therefore no question of requiring the coastal State to defer to the exclusive jurisdiction of the flag State with regard to State vessels. However, it is recognised that the best way to protect State vessels would be through co-operation between the coastal State and the flag State. As such, the information passed to the flag State concerning the discovery of the State’s vessel is undertaken ‘with a view to cooperating on the best methods of protecting State vessels and aircraft’. While the exclusive jurisdiction of the coastal State is recognised, this article must be read with the general principles. As such, it does not purport to alter the flag State’s existing rights in international law. Given that these rights are uncertain, this article would not necessarily resolve any issues regarding abandonment and sovereign immunity. There is no doubt that the greatest achievement with regard to the protection of archaeologically, historically or culturally important State vessels is their inclusion in the protection regime afforded by the Convention. The benchmark archaeological standards set out in the Rules of the Annex will therefore be applicable to these vessels if the appropriate States resolve to undertake an excavation. The requirement that agreement is obtained by the flag State for the excavation of vessels beyond the territorial waters may also be regarded as an important contribution to the development of an in situ preservation regime. This is particularly so in regard to underwater cultural heritage on the continental shelf where it is expected a great amount of underwater cultural heritage will be discovered in the near future due to further advancements in diving and underwater technology. The enforcement regime Authorisation, sanctions and seizure The Convention’s primary mechanism for the protection of underwater cultural heritage is the elimination of any commercial incentive to recover underwater

241 This regime applies similarly to an archipelagic State with regard to foreign State vessels found in the archipelagic waters. 242 Article 7(1). 243 Article 7(2). 244 Article 7(3).

Underwater cultural heritage 351 cultural heritage. The secondary mechanism utilised in the protection regime is derived from international cultural heritage law relating to the trafficking in illicitly recovered cultural heritage. While use of the primary mechanism for protection would ensure that no underwater cultural heritage was recovered for commercial purposes, it was recognised that some underwater cultural heritage may still be recovered in a manner not conforming to appropriate scientific standards. In these cases, it is proposed that States may seize such illicitly excavated underwater cultural heritage imported into its territory and impose sanctions for such importation. Ordinarily, the State granted jurisdiction over either the territory in which the underwater cultural heritage was excavated, or the State of which the excavator is a national, will be able to determine the consequences of non-compliance with its regulations. However, the ability of an excavator to avoid these jurisdictional States requires a system that allows a third State to take some action in order to protect underwater cultural heritage. As this third State will have neither territorial jurisdiction over the place of the illicit activity, nor nationality jurisdiction over the excavator, the only jurisdiction that it might possess must relate to the object recovered and brought into its own territorial jurisdiction. The Convention therefore requires these States to implement a system that prevents illicitly excavated underwater cultural heritage being brought into its territory, and to impose sanctions, including seizure of the underwater cultural heritage, for infringements.245 The Convention provides that authorisation for activities directed at underwater cultural heritage is required to comply with the Rules in the Annex.246 In areas beyond coastal State jurisdiction, this authorisation will be granted by the ‘co-ordinating State’, which in the case of underwater cultural heritage on the continental shelf will ordinarily be the coastal State. This authorisation would allow for the activity directed at the underwater cultural heritage to actually take place. As article 14 requires States to implement a system preventing the entry into its territory of underwater cultural heritage not recovered in accordance with the rules of the Annex, a second authorisation may be necessary which relates solely with regard to the entry into territory of the underwater cultural heritage rather than its excavation. This might be the case where underwater cultural heritage recovered beyond coastal State jurisdiction is authorised by the co-ordinating State in conjunction with other interested States, but later landed in a third State. As such, the third State, if a Party to the Convention, would require authorisation for the entry of the underwater cultural heritage. While any reference to the use of permits was removed from the Convention, it is expected that most States will make use of permits issued prior to any proposed activity directed at underwater cultural heritage.247 This is to be expected as the use of permits,

245 Article 14. 246 Rule 1. 247 For further reading on the use of permits, see McLaughlin, op. cit., pp. 149–98.

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either import permits or excavation permits, are utilised by a number of States to regulate the recovery of both terrestrial and underwater cultural heritage, and been agreed upon in conventional international law.248 The use of permits will facilitate the task of ensuring activities directed at underwater cultural heritage are undertaken in accordance with the Rules of the Annex and therefore have a number of benefits in a preservation regime.249 While the Convention no longer explicitly requires that permits are issued prior to any activity directed at underwater cultural heritage, the Rules of the Annex require a project design to be established prior to any activity directed at underwater cultural heritage, so all permits would have to be issued prior to any activity directed at underwater cultural heritage. A State Party is required to ‘take measures providing for the seizure’ of underwater cultural heritage recovered in a manner not conforming with the Rules in the Annex.250 The requirement that the State take such measures, rather than simply to seize underwater cultural heritage, reflects the reluctance of State to be bound to achieve a result, which in practical terms might not be achievable. Originally it was proposed that this would occur whether the underwater cultural heritage had been brought into the territory of the State Party directly or indirectly. Thus, the duty to take measures to seize such underwater cultural heritage would apply irrespective of whether it was recovered and imported directly into the State or imported from another State. Although this original position is no longer specified in article 10, it may be implied. A problem that might arise occurs when the underwater cultural heritage that has been seized by a particular State has an identifiable owner. The national laws of the State will therefore have to determine the rights of the owner in these circumstances.251 When exercising the right to seize artefacts in accordance with article 18(1), a State Party is under a duty to ‘record, protect and take all reasonable measures to stabilise’ the underwater cultural heritage.252 Original drafts had used the term ‘conserve’ rather than ‘stabilise’ to describe the activity States were required to undertake.253 Conservation of marine artefacts can be a costly and time-consuming

248 For example, in the 1970 Convention. 249 The creation of a permit system must be considered in light of the system of export and import control established under conventional international law. In particular, the 1970 Convention establishes a system of controls, which may become operative if the underwater cultural heritage is to be moved from the State to which it was first brought to another State, with the result that two permits may be needed. 250 Article 18(1). 251 In this case, the choice-of-law rules will be determined by the national courts. Questions of ownership of a vessel will ordinarily be determined by the law of the Flag State, while questions of ownership of the cargo will be determined by the law of the nationality of the owner, if known, or the flag of the vessel on the assumption that an owner of the cargo would be a national of the Flag State. 252 Article 18(2). 253 Article 11(1) of the negotiating draft had declared that, ‘[e]ach State Party shall record, protect and take all reasonable measures to conserve underwater cultural heritage seized under this Convention’. CLT-2000/CONF.201/8, Paris, 5 July 2000.

Underwater cultural heritage 353 activity, and to require all State Parties to provide such a facility may be an onerous burden. To ‘stabilise’ recovered artefacts might imply a less onerous duty than to ‘conserve’, being a short-term solution to mitigate deterioration rather than long-term conservation. The article also does not impose a mandatory duty, but rather requires a coastal State to take all ‘reasonable’ measures to stabilise artefacts. What ‘reasonable measures’ are will depend on the coastal State’s infrastructure, technical expertise and facilities, etc. Developing States may need the expertise of UNESCO and other interested States if the artefacts in these situations are to be conserved. Thus, article 18(3) requires the seizing State to notify all other States that might have an interest in the underwater cultural heritage of its seizure, as well as UNESCO, and co-operate for the conservation of the underwater cultural heritage.254 Having ‘recorded, protected and conserved’ the underwater cultural heritage, the seizing State will have to decide on the ultimate disposition of these artefacts. Article 18(4) provides that: a State Party which has seized underwater cultural heritage shall ensure that its disposition be for the public benefit taking into account the needs of conservation and research; the need for re-assembly of a dispersed collection, the need for public access, exhibition and education and the interests of any State with a verifiable link, especially a cultural, historical or archaeological link, to the heritage concerned. As article 2(3) requires that underwater cultural heritage be preserved for the benefit of humanity, article 18(4) attempts to give effect to this when a State has seized underwater cultural heritage. Unfortunately the term ‘public benefit’ might suggest a national benefit to the seizing States, and it is therefore unfortunate that terminology consistent with article 2(3) was not used. The article also merely suggests consideration that may be taken into account without imposing any duty to do so. The enforcement of international cultural heritage laws relies mostly on noncriminal sanctions such as the return, restitution and forfeiture of stolen goods.255 Most of the conventions and recommendations are designed to create an infrastructure that will prevent offences relating to cultural heritage rather than a system of penal measures. However, it is recognised that sanctions can form an important aspect of a disincentive regime. As such the Convention requires States to impose sanctions for violations of measures it takes to implement this Convention. The nature sanctions might take was discussed at length during negotiations. It was concluded that the nature of the sanction should be left to each State to

254 Article 18(3). 255 J.A.R. Nafziger, ‘International Penal Aspects of Protecting Cultural Property’ (1985) 16 International Lawyer 835; C. Bassiouni, ‘Reflections on Criminal Jurisdiction in International Protection of Cultural Property’ (1983) 10 Syracuse Journal of International Law and Commerce 281.

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determine but that at the very least sanctions applicable ‘shall be adequate in severity to be effective in securing compliance with this Convention and to discourage violations wherever they occur and shall deprive offenders of the benefit occurring from their illegal activities’.256 Article 17(3) concerning co-operation in the enforcement of sanctions imposed was subject to some revision. Originally, the duty to co-operate was phrased in mandatory terms and included examples of areas in which States might co-operate, such as the production of documents or extradition.257 However, the complexities associated with many of these duties, especially that of extradition, proved problematic, and it was eventually agreed not to limit or list the manner in which States might co-operate. Competent authorities, public awareness and training The preservation of the world’s cultural heritage requires every State to participate in the collective protection infrastructure. In order to do so, it is ordinarily required of States that they establish national services for the preservation of this heritage,258 including the call to establish national inventories.259 Article 22 of the Convention is therefore not unique in this respect, and requires States to ‘establish competent authorities or improve the existing one where appropriate with the aim of providing for the establishment, maintenance and updating of an inventory of underwater cultural heritage, the effective protection, conservation, presentation and management of underwater cultural heritage, as well as research and education’. Originally the draft convention had referred to the creation or improvement of a ‘national service’ that would implement the terms of the Convention. The establishment of such a national service, however, requires expertise and government financing, which may be difficult for many developing States, particularly in light of the low priority underwater cultural heritage traditionally has for State administrations. Although UNESCO is able to provide some technical expertise, it is unable to provide the financial aid necessary to establish appropriate national services, which would include conservation laboratories, employment of appropriately qualified personnel and administrative infrastructure. The use of the term ‘competent authorities’ suggests an organisation that will not necessarily implement those that may be undertaken by a national service to protect underwater

256 Article 17(2). 257 Article 10(2) of the secretariat draft stated that; ‘States Parties agree to co-operate with each other in the enforcement of these sanctions. Such co-operation shall include, but not be limited to, production and transmission of documents, making witnesses available, service of process and extradition’. CLT-96/CONF.202/5 Paris, April 1998. 258 See for example articles 12–17, 1972 UNESCO Recommendation Concerning the Protection at National Level of the Cultural and Natural Heritage; articles 5, 13 and 14, the 1970 Convention; articles 7 and 15, 1954 Hague Convention; and article 5, World Heritage Convention. 259 Article 5(b), 1970 Convention, article 29, 1972 UNESCO Recommendation and article 4(2), 1969 European Convention.

Underwater cultural heritage 355 cultural heritage, but rather an administering organisation with only the aim of providing the necessary infrastructure to implement the provision of the Convention, which might include a national service. This may, however, be beneficial to developing States that could not possibly establish national services to the extent that developed States such as the US could, while still requiring those States to do whatever they possibly can.260 It is therefore clear that no uniform national service can be established in all States to ensure that underwater cultural heritage is protected in accordance with the Convention. Article 21 therefore requires States to ‘co-operate in the provision of training in underwater archaeology, in techniques for the conversation of underwater cultural heritage and, on agreed terms, in the transfer of technology relating to underwater cultural heritage’. Article 20 of the Convention has received little comment or been the subject of much negotiation at the meeting of experts, yet it contains arguably the most important tool for the preservation of underwater cultural heritage.261 This article simply requires that States ‘take all practical measures to raise public awareness regarding the value and significance of underwater cultural heritage and the importance of protecting it under the Convention’. There was, however, one alteration made during negotiations, which was to replace the term ‘education’ with ‘public awareness’.262 The latter can be regarded as a less stringent duty on States, requiring only an awareness rather than actually educating the public, which might include formal training.263 As it would be impossible to determine the outcome of an educational or awareness process, the article simply requires a State to take all practical measures to achieve this.264 The mandatory requirement of creating a public awareness policy would supplement the requirement that States co-operate in the provision of training in underwater archaeology.265 The establishment of training facilities such as those envisaged in article 21 are not only extremely expensive but also highly technical.

260 This problem is recognised in the World Heritage Convention, which states that ‘protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific and technological resources of the country where the property to be protected is situated’. 261 Education and public awareness are important features of many international conventions aimed at the protection of the world cultural and natural heritage. See for example article 10, 1970 Convention, article 7, 1954 Hague Convention and article 12, 1956 UNESCO Recommendations. 262 Article 15 of the negotiating draft provided that; ‘[e]ach State Party shall endeavour by educational means to create and develop in the public mind a realisation of the value of the underwater cultural heritage as well as the threat to this heritage posed by violations of this Convention and non-compliance with the Rules of the Annex’. CLT-96/CONF.202/5 Rev. 2, Paris, July 1999, p. 11. 263 A very successful educational and training programme is run by the Nautical Archaeological Society, based in the UK, and run in a number of States, including the US, South Africa and Australia. 264 Similar provisions are contained in article 24, 1972 World Heritage Convention, article 25, 1954 Hague Convention and article 10(b), 1970 Convention. 265 See Dromgoole (1993) op. cit., pp. 5–12 and 5–45.

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Very few developing States have the resources or expertise to establish such facilities. Many of these States will require aid from developed States, particularly those with a rich tradition in underwater archaeology and underwater cultural heritage conservation. Thus article 21 includes an obligation to co-operate in the transfer of technology relating to underwater cultural heritage. It is, however, unlikely that some States will allow the transfer of certain technology related to activities directed at underwater cultural heritage where the technology is connected with the defence industry.266 As such, the transfer of technology will be on terms agreeable to the transferring State. International co-operation in the protection of underwater cultural heritage Underwater cultural heritage, whether found in international or coastal waters, often has an international character, either in the origins of the vessel, its components, crew, cargo or trading route. As such, it may be of archaeological, historical or cultural interest to a number of nations, thus giving rise to both a potential national interest in underwater cultural heritage as well as an international interest. It is therefore incumbent on any State engaged in any activity directed at underwater cultural heritage to endeavour to co-operate with any other State that might have an interest in the cultural heritage. The principle of State co-operation in the preservation of underwater cultural heritage, originating in article 303 of UNCLOS, forms the foundation upon which the protection regime introduced in the Convention is based.267 While the duty to co-operate is evident both in the preamble268 and in the general principles of the Convention,269 and is clearly evident in the jurisdiction structure established to deal with underwater cultural heritage beyond coastal State jurisdiction, it has crystallised into a more concrete form in two provisions of the Convention, namely, in the collaboration of certain activities directed at specific underwater cultural heritage, and the development of regional agreements. Article 19 requires States to co-operate in the protection of underwater cultural heritage, which includes collaborating in the investigation, excavation, documentation, conservation, study and presentation of such heritage270 as well as sharing information regarding discoveries of underwater cultural heritage, illicit excavations, scientific methodologies and technologies relating to underwater cultural heritage and legal developments in States to advance the protection of underwater cultural heritage.271 It was

266 For example, Dr Robert Ballard has made extensive use of US naval vessels and technology, particularly the nuclear submarine NR-1 to search for underwater cultural heritage. See ‘Titanic man finds world’s oldest ships 1,000 ft down’ The Sunday Times, 27 June 1999. 267 See for example articles 13–20, 1956 UNESCO Recommendation. 268 Tenth recital. 269 Article 2(2). 270 Article 19(1). 271 Article 19(2).

Underwater cultural heritage 357 realised that information regarding discoveries of underwater cultural heritage might endanger it if made public. As such, when such a risk occurs, States are required, as far as their national legislation allows, to keep such information confidential.272 The preservation of the cultural heritage has been the subject of a number of regional agreements or bilateral agreements.273 A number of States, most notably European, Latin American and Caribbean States were concerned that the Convention would not adequately protect underwater cultural heritage in certain regions and wished to ensure that more stringent protective measures could be introduced on a regional basis. The establishment of international agreements, whether bilateral or multilateral, global or regional, are a natural aspect of international law and reflected by the negotiations of this very Convention. As such this proposal does not provide States with any rights or duties they do not already possess as subjects in international law. Nevertheless, promotion of regional agreements may enable certain objectives of the Convention to be realised, such as assistance in the creation of public awareness and training. It is unfortunate that there is a need to provide for such agreements in that it suggests that the protection regime provided for in the Convention may not function as effectively as many States might wish. The creation of numerous regional and bilateral agreements providing for a more stringent protective regime will unfortunately create a fragmented regime applying to underwater cultural heritage, so that the degree of protection of the underwater cultural heritage may be a function of its geographical position. Such a fragmented legal regime is quite contrary to the very aim of this Convention. Yet, in the process of international negotiation, it has been a compromise necessary to promote the effective protection of underwater cultural heritage in some areas, while promoting the ‘idea’ of protection in others. It may therefore simply be the beginning of a process of expanding effective protection to all areas. The draft clearly maintains that the justification for the ‘protection’ of underwater cultural heritage is that it is of importance to, and an integral part of, the heritage of humanity. It further holds that all States have a collective responsibility for achieving this protection.274 Recognising that underwater cultural heritage in international waters may originate from distant States, the Convention attempts to ensure that States with some cultural, historical or archaeological link to the underwater cultural heritage be included in any co-operative protective regime. The mechanism, however, is poorly constructed, simply requiring that in entering into agreement to protect underwater cultural heritage on the continental shelf,

272 Article 19(3). 273 See for example Agreement Regarding the M/S Estonia reprinted in (1996) 20 Marine Policy 355. An important bilateral agreement which concerns underwater cultural heritage is that entered into between the Governments of Netherlands and Australia concerning VOC wrecks lost off the coast of Western Australia. 274 Article 2(2).

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any State that declares an interest to be involved in the agreement must base their declaration ‘on a verifiable link’ with the underwater cultural heritage.275 The Convention does not, however, give any direction as to how such a link should be ascertained, or by whom. Article 18 also makes use of the ‘verifiable link’ criteria to oblige States that have seized illicitly recovered underwater cultural heritage to report such seizure to States with such a link. While in this case it is clear which State may have to determine the link, again, there are no guidelines for such a determination. It is unfortunate that such a criterion was included, as it will certainly give rise to disagreements. With regard to underwater cultural heritage found in the area, not only is this unfortunate criteria included, but States are also required to pay regard to ‘the preferential right’ of States with a cultural, historical or archaeological link to the underwater cultural heritage.276 This notion of preferential rights derives from article 149 of UNCLOS. However, as the derivation of any meaning from article 149 has proved impossible, its inclusion in the Convention only goes to heighten difficulties in determining which States should be party to any co-operative protection regime, clearly inviting disputes.

International principles and consistency The principles upon which the Convention is constructed are derived from three different spheres of law: the law of the sea, admiralty law (or maritime law) and cultural heritage law, which have tended to work in relative isolation from one another. The Convention is a complex attempt to develop a convention at the congruence of these three spheres of law, each of which is underpinned by very different policy objectives. This had implications for consistency in international legal instruments that span different spheres of law. Consistency is important when considering the integration of these three spheres of law as each sphere is currently regulated to some extent by conventional international law. Few States, for example, are signatories to three of the most important conventions in these three spheres, 1989 Salvage Convention, UNCLOS and the 1970 Convention. An attempt to alter the effects of each convention in this particular forum has led to the possibility of a multitude of different bilateral or multilateral international obligations being created.277 International law has recognised salvage as the most appropriate to encourage the rescue of endangered property at sea, particularly in the case of possible environmental disasters. In an effort to make the application of salvage law uniform from State to State, the International Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea was adopted in 1910,

275 Article 9(5). 276 Articles 11(4) and 12(6). 277 Australia, China, Egypt, Greece, India, Italy, Jordan, Mexico, Nigeria, Norway, Russia, Saudi Arabia and Tunisia are signatories to all three.

Underwater cultural heritage 359 and replaced in 1989 with the conclusion at the IMO of the Salvage Convention. This Convention makes no mention of any underwater cultural heritage (in the form of either sunken vessels or their cargoes), in the definition of ‘vessel’ or ‘property’. The question of the salvage of underwater cultural heritage was, however, raised during negotiations, when France and Spain attempted to have underwater cultural heritage excluded. These attempts were partially successful in that Article 30(1)(d) allows a State to enter a reservation which reserves the right not to apply the Salvage Convention ‘when the property involved is maritime cultural property of pre-historic, archaeological or historic interest and is situated on the sea-bed’. Taking into consideration the travaux preparatiores, the 1989 Salvage Convention is therefore applicable to underwater cultural heritage, unless a State specifically chooses not to apply it.278 If Article 4 of the Convention can be interpreted as eliminating the application of salvage law to underwater cultural heritage, there is a possibility of a conflict occurring in cases where a State party to the 1989 Salvage Convention has failed to make a reservation pursuant to Article 30(1)(d). At the 1996 meeting of experts, the expert from the IMO stated that ‘because of the private-law non-mandatory nature of the Convention, the right to exclude the application of salvage law exists even without express reservation’.279 As Dromgoole and Gaskell point out, if this is so, why would a reservation be required at all?280 The reason is that while the 1989 Salvage Convention concerns private law, it is an international convention, and therefore imposes on State parties international obligations. For this reason, a State party to the 1989 Salvage Convention that has not entered a reservation in accordance with Article 30(1)(d) will have to apply salvage law to any case involving a foreign salvor who is a national of a fellow State party to the 1989 Salvage Convention – unless that State has entered a reservation under Article 30(1)(d). If two State parties to the 1989 Salvage Convention become signatories to a UNESCO convention that prevents the application of salvage law to underwater cultural heritage, the provisions of the more recent treaty would prevail, so no conflict would arise. The broader the acceptance of the Convention, the less likely therefore will be this conflict. An alternative solution would be for a State party to the 1989 Salvage Convention to denounce that convention, and then to re-ratify it with a reservation under Article 30(1)(d).

278 A number of States have entered a reservation pursuant to Article 30(1)(d), including Australia, Canada, China, Croatia, France, Greece, Iran, Netherlands, Norway, Russian Federation, Saudi Arabia, Spain, Sweden and the United Kingdom. The US, home to the largest and best-financed salvage fleet, declined to make such a reservation. Not every country that entered a reservation will refrain from applying the convention to the salvage of underwater cultural heritage. The UK, for example, entered a reservation in accordance with Article 30(1)(d) that merely gave it the right to enter a reservation in the future. Dromgoole and Gaskell (1993) op. cit., p. 251. 279 Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc. CLT-96/CONF.605/6 (May 1996). 280 Dromgoole and Gaskell (1998) op. cit., p. 189.

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Article 4 of the Convention may also conflict with Article 303(3) of UNCLOS. Article 303(3) specifically preserves the law of salvage in the various maritime zones to which it applies.281 However, it is clear that, as regards two States that may become parties to the Convention, the provision of the more recent treaty will take precedence over the former in relation to a similar subject matter, especially because the non-application of salvage law to underwater cultural heritage does not affect the basic principle embodied in UNCLOS and because such a resolution would not affect the enjoyment by other State parties of their rights or the performance of their obligations under UNCLOS.282 O’Keefe argues that Article 303(3) should not be interpreted to prevent later conventions from modifying or excluding the law of salvage in the maritime zones to which Article 303(3) applies.283 This interpretation of UNCLOS, he argues, is consistent with that of the 1989 Salvage Convention, which allows States to enter a reservation that will have the effect that the Salvage Convention does not apply to underwater cultural heritage. It has been argued also that Article 303(3) does not necessarily make salvage law a part of international law, as the French text of UNCLOS, equally authentic to the English, refers to ‘droit de récupérer des épaves et (…) autres régles du droit maritime’, which according to the Italian delegation, ‘is something different from the common law concepts of the law of salvage and admiralty’.284 Thus, no conflict may be found eventually between the two conventions. While the Convention’s exclusion of salvage law may give rise to conflicts with international law found in existing conventions, broad acceptance of the Convention would minimise this risk. The risk however should not prevent the progressive development of international law, and recourse to the law of treaties provides at least some structure for the resolution of theseconflicts.

Conclusion While the provisions of the Convention do not provide for a protection regime as effective as many would have hoped, the success of the process that began in the ILA Cultural Heritage Committee is clearly evident. The issue of the protection of underwater cultural heritage has once again been raised in international discourse and continued the process begun in the Seabed Committee in the late 1960s.

281 Section 303(3) states that ‘Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practises with respect to cultural exchanges.’ 282 According to Article 311 of UNCLOS: Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 283 O’Keefe (1996) op. cit., p. 303. 284 Document presented by the Government of Italy at the 2000 UNESCO Meeting.

Underwater cultural heritage 361 It is a step in an evolutionary process that builds on those aspects of the UNCLOS regime that were agreed on and improves the regime by introducing further protection provisions that, while not acceptable to many States thirty years ago, have matured through the years to the extent that they are now generally acceptable to States. While the Convention clearly lacks clarity in many respects, and includes problematic provisions such as the non-commercialisation of underwater cultural heritage and the inclusion of State vessels in the regime, it should be welcomed as the first international regime to provide a protective framework for the world’s underwater cultural heritage, and paves the way for the development of an effective protection regime for underwater cultural heritage beyond coastal State jurisdiction.

7

Intangible cultural heritage

Introduction Determining exactly what is intangible cultural heritage is near impossible. Examples may be given, such as oral history and literature, music, dance, agricultural and manufacturing skills, rituals and use of symbols, traditional medicine, culinary traditions and traditional sports and games. These examples, however, do not conceptually define the intangible cultural heritage. As Arizpe notes, the intangible cultural heritage ‘is not an object, not a performance, not a site; it may be embodied or given material form in any of these, but basically, it is an enactment of meanings embedded in collective memory’.1 Even the examples cited above are mere manifestations of the intangible cultural heritage. The adoption by UNESCO of an international convention on the safeguarding of intangible cultural heritage has brought a very new dimension to international conventional law on the protection of cultural heritage. Whilst great international efforts had been made to protect the tangible cultural heritage, many cultures valued the intangible heritage handed down from generation to generation as perhaps more important than the mere physical manifestations of that culture. Indeed, the physical could often not be understood or appreciated without an understanding of its context within the culture. This understanding gave to the tangible its cultural value, and required protection. Without it, the tangible cultural heritage would merely be an antiquity; an object devoid of context and meaning. In some cultures, little tangible heritage was actually made, and the intangible heritage was the only heritage passed from generation to generation. In others, much of the physical cultural heritage has been destroyed or looted, leaving only the intangible. The importance of culture and cultural diversity, and the role of the intangible cultural heritage therein, lies not only in States, communities or groups, but also for the individual. As a basic repository of culture, the individual’s right to a culture, as well as economic and social rights, have become manifest in the human

1 L. Arizpe, ‘The cultural politics of intangible cultural heritage’ (2007) 12 Art Antiquity and Law 361, 362.

Intangible cultural heritage 363 rights discourse: specifically highlighted in the 1948 Universal Declaration of Human Rights. Whilst the intangible cultural heritage is not confined to that of indigenous communities, it has played an important part in the process of recognition of indigenous groups and in the continued political, economic and social process for self-determination. It has played a key part in the human rights discourse in relation to these issues. The recognition of the importance of intangible cultural heritage is not confined to the need to preserve the diversity of cultures that make up humankind. The forces of globalisation and the domination of powerful cultures over others, particularly indigenous cultures, evinced the decline of many cultural traditions and practices. This threatened not only that very culture, but also industries that relied on continued cultural practices and skills; including agriculture, the manufacture of traditional products and the tourist industry. Furthermore, much of the traditional knowledge of many cultures, particularly indigenous cultures, was recognised as important in protecting the environment and biodiversity. It has also taken a central role in the agenda for sustainable development.2 The recognition of the importance of pluralism and cultural tolerance in functioning societies, which underpins sustainable development, has fostered the recognition of cultural values and the protection of values and practices that support sustainable development. As such, it has become of interest to a range of international organisations, including the United Nations Environment Programme, the Food and Agricultural Organisation, the International Labour Organisation, the World Trade Organisation, the World Bank and the International Monetary Fund. Forms of intangible cultural heritage thus fall within an overlapping and multifaceted international regime. The legal protection of intangible cultural heritage Given the broad scope of what might fall within the scope of intangible cultural heritage, it is difficult to determine the manner in which any particular form has been subject to legal protection. As simply a manifestation of culture, and a component of the tangible cultural heritage, it is as old as the protective regimes discussed in previous chapters. As a manifestation of culture in its own right, and the recognition of the importance of cultural diversity, the beginnings of a normative regime to safeguard the intangible cultural heritage can be found in the very creation of UNESCO.3 While recognised, intangible cultural heritage was overshadowed by developments to address the tangible cultural heritage; though it naturally formed an indirect component in all the resulting regimes. With the evolution of the World Heritage Convention, the intangible began to rise to

2 T. Kono, ‘UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development’ in A.A. Yusuf (ed.), Standard-setting in UNESCO: Normative Action in Education, Science and Culture, Leiden: Martinus Nijhoff and UNESCO Publishing, 2007, p. 237. 3 Arizpe, op. cit., p. 365.

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the fore. The first attempt at any normative regime, however, fell within the realm of intellectual property protection. Initiated in the early 1970s, UNESCO collaborated with the World Intellectual Property Organisation (WIPO) to include folklore in a variety of model laws on copyright protection.4 This overlap between intellectual property rights and the intangible cultural heritage has continued, requiring close collaboration between the two regimes in order to ensure consistency, and to address what are essentially overlapping regimes in a way that does not undermine either one. The gradual incorporation of elements of intangible cultural heritage into nonlegal instruments that nevertheless acted as guiding norms of behaviour began to develop, particularly within ICOMOS. Importantly, in Australia, ICOMOS adopted the Charter for the Conservation of Places of Cultural Significance in 1979 (Burra Charter), which included, within the developed conservation principles, the conservation of the intangible cultural heritage. Places of significance required consideration of the aesthetic, historic, scientific and social values of associated places. Slowly intangible cultural heritage values have been incorporated into developing regional and national conservation principles and laws.5 In 1989 UNESCO adopted the Recommendation on the Safeguarding of Traditional Culture and Folklore. While the Recommendation sought to encourage international co-operation for safeguarding traditional culture and folklore, it acted primarily to set out national measures that individual States might take, including the identification, conservation, preservation and dissemination of the intangible cultural heritage. Unfortunately, this recommendation does not appear to have been particularly successful in generating national protective measures.6 Its failure has been attributed to the lack of any incentives for States to engage in any co-operative measures, or to impose possible sanctions, and few States gave effect to the national protective measures suggested. This, and the ‘soft law’ nature of the Recommendation, rendered the Recommendation benign.7 A more normative instrument, it was thought, would provide a more effective protective regime. UNESCO, nevertheless, proceeded with a programme to raise the profile of intangible cultural heritage and foster a deeper understanding and appreciation of its importance. The early 1990s saw the establishment of the Intangible Cultural Heritage sub-programme and the Intangible Cultural Heritage Unit. This led, in 1993, to UNESCO launching the Living Human Treasures programme, designed

4 1976 Tunis Model Law on Copyright for Developing Countries (UNESCO) and 1982 Model Provisions for National Law on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (UNESCO and WIPO). 5 Y. Ahmad, ‘The Scope and Definition of Heritage: From Tangible to Intangible’ (2006) 12 International Journal of Heritage Studies 292, 298. 6 T.M. Schmitt, ‘The UNESCO Concept of Safeguarding Intangible Cultural Heritage: Its Background and Marrakchi Roots’ (2008) 14 International Journal of Heritage Studies 95, 96. 7 J. Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage, Leicester: Institute of Art and Law, 2006, p. 2.

Intangible cultural heritage 365 to celebrate individuals who are ‘the living exponents of traditional culture’8 and able to transmit their skills and knowledge to future generations. Much of the impetus for these developments came from Korea and Japan, with the latter providing funds for the promotion programme. Part of the concern for the intangible cultural heritage from these States, Japan in particular, was due to concerns regarding the requirement of authenticity in the World Heritage Convention. Much of the physical manifestation of Japanese cultural heritage, being made of wood, requires constant replacement, and as such, little of the original structure of many shrines and temples could be considered authentic. Whilst this was satisfactorily addressed in 1994 through the adoption of the Nara declaration, the intangible cultural heritage represented by the tangible was of major concern for Japan and other Asian States.9 At the same time, traditional knowledge, particularly that of indigenous communities, was increasingly being recognised as of great importance in the protection of the environmental and genetic diversity, as well as for sustainable development. As such, efforts to provide some protection against the loss of such knowledge were being made internationally. The United Nations Environment Programme, for example, has been working on mechanisms to preserve such knowledge and practices, including in the 1992 Convention on Biological Diversity. In 1996, recognising the imbalances that had been created on the World Heritage List between developed States and developing States, consideration was given to amending the Convention so as to include safeguarding intangible cultural heritage. This, it was thought, could introduce some balance since many States in Africa, South Pacific and Asia had little physical manifestations of their culture, but a rich intangible heritage, including oral history, dance, rituals and music. Ultimately, an amendment was considered too difficult a process. UNESCO therefore proceeded with its programme to raise the profile of intangible cultural heritage. In 1997, the Masterpieces of Oral and Intangible Heritage of Humanity programme was launched, again as an awareness raising and educational tool. Loosely modelled on the World Heritage listing process, this programme required the nomination of Masterpieces for inclusion in a UNESCO list, necessitating the construction of a set of criteria against which nominations could be measured, as well as the procedures and organs that were required to administer and determine the content of the Masterpieces list. By 2005, 90 examples were included on the list.10 This programme was considered successful in that it not only raised awareness of the intangible cultural heritage, particularly in those States that had

8 Blake, op. cit., p. 3. 9 Arizpe, op. cit., p. 371. 10 These include, for example, Albanian Folk Iso-polyphony, Bangladeshi Baul Songs, the language, dance and music of the Garifuna in Belize, the oral heritage of Gelede in Benin, the royal ballet of Cambodia, the Kun Qu opera of China, Cuba’s Tumba Francesca, the tradition of Vedic Chanting in India, the Maroon Heritage of Moore Town, Jamaica, Vanuatu Sand Drawings, and the professional Giants and Dragons of Belgium and France.

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Masterpieces on the list, but also led to the elaboration of national policies and the development of relevant administrative and legislative programmes.11 This programme was, in many ways, a test of the viability of introducing a more ambitious conventional international regime. The success of UNESCO’s Masterpieces of Oral and Intangible Heritage of Humanity programme coincided with the evolution of the successful World Heritage Convention.12 In particular, the recognition of the concept of cultural landscapes required specific recognition of the intangible cultural link between a culture and the land. Cultural importance was therefore not only linked with cultural sites, but also with natural sites. The World Heritage Convention’s Operational Guidelines gave specific recognition to this by including, as a criteria for the listing of natural heritage sites, that it be ‘directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance’.13 This was the first time that the intangible cultural heritage was specifically taken into account when providing tangible cultural heritage with international protection.14 Similarly, the text for authenticity requires that ‘cultural heritage must be considered and judged primarily within the cultural context to which it belongs’, and that the cultural values are expressed through a variety of attributes, including: form and design, use and function, traditions, techniques, spirit and feeling and language and other forms of intangible heritage’.15 Similarly, the 2001 International Agreement on Plant Genetic Resources for Food and Agriculture recognised the role of local and indigenous farmers and their traditional knowledge in preserving and developing sustainable practices and reducing environmental degradation. More recently, the recognition of cultural knowledge in relation to genetic resources and biotechnology has necessitated the creation of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Deliberation in this Committee included the possibility of developing a new international convention to address these issues.16 Whilst the World Heritage Convention increasingly took into account the intangible cultural heritage in considering nominations of World Heritage listing, it was the structural success of the World Heritage Convention which was to play supreme importance in the design of the Intangible Cultural Heritage Convention. Any attempt to provide a protective regime for intangible cultural heritage

11 Blake, op. cit., p. 3. 12 Some consideration had been given to inclusion of intangible cultural heritage in the World Heritage Convention, but was omitted at a relatively early stage in the development of the final text. Blake, op. cit., p. 5. 13 Operational Guidelines 2008, para. 77(vi). 14 A.A. Yusuf, ‘Definition of cultural heritage’ in F. Francioni, The 1972 World Heritage Convention, Oxford: Oxford University Press, 2008, p. 37. 15 Operational Guidelines 2008, para. 81. 16 Blake, op. cit., p. 11.

Intangible cultural heritage 367 necessarily required the close co-operation of the States in which it was to be found and practised, and as such, all measures which encouraged action at a national level needed to avoid imposing burdens on the State and, at the same time, provide support and incentives. The success of the World Heritage Convention’s system of international co-operation and the establishment of the World Heritage Committee, Secretariat and Fund, was considered to be the most appropriate structure for protecting the intangible cultural heritage.17

The intangible cultural Heritage Convention Adopted by the General Conference of UNESCO on 17 October 2003, the Convention achieved its thirtieth instrument of ratification18 on 20 January 2006, bringing it into force three months later on 20 April 2006.19 The preamble’s guiding principles and context The Convention’s preamble is extensive. This is so because it not only sets out the reasons for the adoption of the Convention, and conveys the central aims and principles upon which the conventional regime is structured, but also puts the safeguarding of the intangible cultural heritage in its broadest international context. It is this international context which is set out in the first two substantive recitals. Prominent in recital 2 is the human rights framework in which specific mention is made of the 1948 Universal Declaration on Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the 1966 International Covenant on Civil and Political Rights of 1966. Rights of ethnic, religious and linguistic minorities, and economic, social and cultural rights, are fundamental to the regime to safeguard the intangible cultural heritage. Indeed, it is this human rights framework which provides some limit to the definition of the intangible heritage.20 UNESCO’s activity in relation to cultural heritage is then specifically recalled. In particular, the World Heritage Convention is mentioned 21 as is the Masterpieces of the Oral and Intangible Heritage of Humanity programme.22 Whilst not specifically explained, their mention underscores their importance in the ultimate structure of the Convention. A number of further international instruments are specifically referred to in the preamble. Mention of the 1989 Recommendation on the Safeguarding

17 For a review of the development leading to the adoption of the Convention see J. Blake, ‘On Developing a New International Convention for Safeguarding Intangible Cultural Heritage’ (2003) 8 Art Antiquity and Law 381. 18 That of Romania. 19 Article 34. 20 See discussion of article 2(1). 21 Eighth recital. 22 Thirteenth recital.

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of Traditional Culture and Folklore of 1989, the 2001 UNESCO Universal Declaration on Cultural Diversity and the Istanbul Declaration of 2002 adopted by the Third Round Table of Ministers of Culture, are cited primarily to emphasise ‘the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development’. Whilst important, perhaps the central reason for safeguarding the intangible heritage is set out in the fourteenth recital, recognising ‘the invaluable role of the intangible cultural heritage as a factor in bringing human beings closer together and ensuring exchange and understanding among them’. The need for a convention is then set out in a number of ways. Recognition is given to the fact that the processes of globalisation and social transformation, as well as the phenomenon of intolerance, threatens to lead to deterioration, disappearance and destruction of the intangible cultural heritage. So too does the lack of resources for safeguarding such heritage. 23 The processes of globalisation and social transformation are not in themselves considered threats, and recognition is given to the fact that they do create conditions for renewed dialogue among communities. Within this context, the need for a convention arises from the recognition that there is a ‘deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage’24, but which is essentially not recognised in existing international agreements, recommendations and resolutions concerning the cultural and natural heritage. These, the tenth recital explains, ‘need to be effectively enriched and supplemented by means of new provisions relating to the intangible cultural heritage’. This follows from the recognition that no binding multilateral instrument existed for the safeguarding of the intangible cultural heritage. Given the need to safeguard intangible cultural heritage, the preamble then places the responsibility to address the need, first, at the foot of the international community. As a common concern of humanity,25 it is the international community that is to safeguard intangible heritage ‘in a spirit of cooperation and mutual assistance’.26 The international community is not solely responsible, however, and at the conclusion of the process of adopting the Convention, the resulting regime, to be brought into force by States, will also require not only the participation of States in the safeguarding regime,27 but also ‘communities, in particular indigenous communities, groups and, in some cases, individuals’ that play an important role ‘in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity’.28

23 24 25 26 27 28

Fifth recital. Fourth recital. Sixth recital. Twelfth recital. Twelfth recital. Seventh recital.

Intangible cultural heritage 369 Purpose of the Convention The very real difficulty with setting out a protective regime for intangible cultural heritage is determining exactly what it is that requires protection, and how to facilitate such protection. Article 1 attempts to achieve the latter by setting out four purposes of the Convention. It provides that: The purposes of this Convention are: a b c

d

to safeguard the intangible cultural heritage; to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; to provide for international cooperation and assistance.

The construction is a little awkward. Essentially the purpose of the Convention is to safeguard the intangible cultural heritage. This term, as used in the title of the Convention, ought to capture the nature of the regime of the Convention which, as will be seen, includes the construction of an international co-operative regime and provision for mutual assistance, as well as raising awareness and ensuring respect for the intangible cultural heritage of the communities, groups and individuals concerned. Instead, safeguarding appears in article 1 as one of apparently four equal and separate purposes. Its actual content is set out in article 2(3), which defines ‘safeguarding’ as: measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage. This gives some meaning to ‘safeguarding’ in that the ultimate aim appears to be the ‘viability’ of the intangible cultural heritage. This is not, however, defined or used anywhere else in the Convention, yet is central to an understanding of what it is that the Convention aims to achieve. Some content might be given to it by considering the Canadian articulation of the aim of the Convention during negotiations; which was ‘to develop an environment conducive to the flourishing and production’ of intangible cultural heritage.29 This is achieved through the measures set out in article 2(3), which also gives meaning to the term ‘viability’.

29 Quoted in Blake, op. cit., p. 40.

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The measures set out in article 2(3) effectively set out the actions that will need to be taken by States at both a national and international level to ensure the viability of the intangible cultural heritage, therefore safeguarding it. Not all these measures, however, are easily interpreted. The identification of the intangible heritage, for example, is a central measure to the safeguarding regime, and given further content in articles 11 and 12 at a national level and 16 and 17 at an international level. It is relatively easily defined and given content within the convention. The term ‘protection’, however, is not defined or specifically addressed anywhere in the Convention, and appears to be used in a general intuitive sense to support the need to ensure the viability of the intangible cultural heritage. While such vague and undefined terms such as protection and preservation were included, other terms, though not specifically defined, required some discussion in order to reach an agreed interpretation. The use of the term ‘revitalisation’ of various aspects of intangible cultural heritage was the subject of much debate during negotiations, with a number of delegations concerned that it would require the artificial reconstruction of past practices and traditions, or the freezing in time of others.30 In the context of the other measures, however, it was considered that its meaning was clear, at least in the context that it related to living heritage rather than past heritage. Nevertheless, its meaning remains somewhat obscure. Within the measures contained in article 2(3) are those which relate to education, which might include awareness raising, as well as creating respect for the intangible heritage. Yet two specific aspects of these measures have been singled out for specific treatment in article 1. Article 1(b) makes ensuring ‘respect for the intangible cultural heritage of the communities, groups and individuals concerned’ a central purpose of the Convention. So too is the raising of ‘awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof ’. These measures are, however, ones which will contribute to the viability of the intangible cultural heritage, and therefore to its safeguarding, and do not stand separate from these as suggested by the construction of articles 1 and 2(3). Nevertheless, this construction, though awkward, does serve to highlight these two aspects of the safeguarding regime. The need to ensure respect for the intangible cultural heritage of the communities, groups and individuals was considered to be of the utmost importance as it related the intangible to very specific cultures, not to States who are party to the Convention, but to those, whether in communities, groups or even as individuals, who embody that heritage. Whilst concerns were raised about the use of terms such as communities and groups, which remain contentious in international law and particularly human rights discourse, their use in this context was thought necessary to highlight the relationship between the intangible cultural heritage and the cultural entity itself. Similarly, the safeguarding of the intangible cultural

30 Ibid., p. 41.

Intangible cultural heritage 371 heritage rests on education and particularly raising awareness of its importance. This, however, needs to take place at local, national and international levels, and requires, in particular, an acknowledgment of the link between the national and international, upon which the Conventional structure is based. These two specific purposes of the Convention cannot be attained unless the international regime embodies a system of international cooperation and assistance, provided for in chapter V. This forms part of the larger international systems, and complements that set out in chapters II and IV. Exactly why it was thought worthy of specific mention as a purpose of the Convention is not entirely clear. Blake argues that its inclusion was necessary as a purpose which ‘might otherwise (have remained) more a statement of principle and a useful promotional vehicle can gain greatly in effectives’.31 This, it is argued, is especially so since many of the States with important intangible cultural heritage requiring safeguarding are the poorest in the world and urgently require international assistance. This is certainly true, but, in legal terms, the specific mention of this as a purpose of the Convention does little to enhance its value. As a tool to highlight the need for international co-operation, it does, nevertheless, serve a purpose, albeit somewhat limited. Defining the intangible cultural heritage Unsurprisingly, defining the intangible cultural heritage for the purposes of the Convention was a difficult and controversial issue. With stakeholders from States, communities and groups, and from the perspectives of anthropologists, social scientists, indigenous groups, legal regulators, and State administrators, the possible definitions of the intangible cultural heritage were vast. Key to the construction of the definition, however, was the need to produce a definition which was sufficiently clear and delimited to allow for regulation. At the end of lengthy and difficult negotiations, article 2(1) was produced, which provides that, for the purposes of the Convention: The ‘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 purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the

31 Ibid., p. 30.

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This definition is unlike any other conventional definition. Indeed, whether it can actually be called a legal definition has been questioned.32 It set out an exceptionally broad range of intangible cultural heritage, that being practices, representations, expressions, knowledge and skills that communities, groups and, in some cases, individuals recognise as part of their cultural heritage. Furthermore, it includes the instruments, objects, artefacts and cultural spaces associated therewith. The tangible cultural heritage then becomes part of the intangible cultural heritage, potentially difficult to reconcile with other conventional and national legal regimes. Whilst limited to practices, representations, expressions, knowledge, and skills, and which is given further content in article 2(2), the specific content will be governed by the communities, groups and, in some cases, individuals who claim to embody that intangible cultural heritage. It is only that culture which is able to articulate what is or is not their intangible cultural heritage. This is facilitated by the recognition that this intangible cultural heritage 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. It allows the communities and groups to determine, at any given time, the actual content of their intangible cultural heritage. However, a limit is imposed on the scope of any community or group to declare some practice or expression as their intangible cultural heritage in the concluding sentence of article 2(1), which requires that it be 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. It thus prevents, for example, any practices or expressions which would contravene such human rights instruments, such as ritual scarring or sacrifice.33 The wide ranging practices, representations, expressions, knowledge and skills which might make up the intangible cultural heritage is given further content in article 2(2) which sets out the five ‘domains’ in which the intangible cultural heritage may be manifest. These are: a b c d e

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; traditional craftsmanship.

32 L.V. Prott, ‘Hunting as Intangible Heritage: Some Notes on Its Manifestation’ (2007) 14 International Journal of Cultural Property 385. 33 Blake, op. cit., p. 36.

Intangible cultural heritage 373 While each domain is a wide and indeterminate one, it does allow for some guidance as to where the intangible cultural heritage is most likely to be manifest. Importantly, these domains are exhaustive and not exemplary, yet their indeterminate scope allows for considerable variation. Exactly how this interacts with the definition in article 2(1) is not clear, since in the latter, it is the communities, groups or individuals who will determine the content of the intangible heritage, yet the regime that gives effect to it will impose the requirement that it fall within one of the five domains. It appears that States Parties will act, in a sense, as a filter for the claims of the communities as to what is their intangible cultural heritage, in the same way that the requirement that it does not contravene human rights will be enforced. The reality is that the conventional regime leaves the identification and context of the intangible cultural heritage to be determined by each State, and imposes on that State the duty of safeguarding the intangible cultural heritage. Within the constraints imposed in article 2, States, therefore, have considerable latitude in determining what, for the purposes of the Convention, will be safeguarded. The Conventional structure The Intangible Cultural Heritage Convention substantially replicates the World Heritage Convention in its structure. While changes had to be made in relation to a number of aspects of that regime given the different subject matter, the essential framework remains the same. That is, the imposition of the primary obligations on the State in whose territory the intangible heritage is found, with an international structure of co-operation and assistance designed to assist the territorial State. As such, much of the discussion in Chapter 5 may be imported into this discussion of the intangible cultural heritage regime. Nevertheless, the regimes are quite distinct, even though some overlap might occur, for example, where certain cultural values are used in the identification and listing of a cultural landscape, but which could also be safeguarded under the intangible cultural heritage regime. While this overlapping content will need to be taken into account when considering the application of each Convention, and indeed in providing protection for the very cultural value and its associated physical attributes, the regimes are to operate separately, and pains were taken in article 3 of the Convention to ensure that the Convention is not interpreted as ‘altering the status or diminishing the level of protection under the World Heritage Convention concerning the Protection of the World Cultural and Natural Heritage of World Heritage properties with which an item of the intangible cultural heritage is directly associated’.34

34 Similarly, article 3(b) 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.

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One of the benefits of the Convention is the creation of an infrastructure and organs capable of acting as a repository of knowledge and good practice relating to safeguarding of intangible cultural heritage. It also acts as a clearing house of sorts, through which experience can be pooled and disseminated.35

National safeguarding of intangible cultural heritage Like the World Heritage Convention, the regime to safeguard the intangible cultural heritage rests on the sovereignty and territoriality of States. Article 11(a) provides that each State Party ‘shall take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory’. This is a general duty that applies to the entire intangible cultural heritage present in that State. Article 11(b) then addresses arguably the most important measures to safeguard the intangible cultural heritage: its identification. Since the intangible cultural heritage as defined in article 2(1) requires identification by the community, group or individual to which it is of importance, this needed to be addressed in the duty of States to indentify the intangible cultural heritage. However, since States are the party bound by the Convention, and on whom the duty rests, any attempt to have the content of the international duty determined by any entity other than the State was greatly resisted. The compromise was to leave this identification duty to the State, but ‘with the participation of communities, groups and relevant nongovernmental organizations’. The importance of communities, groups and individuals is further recognised in article 15, which requires each State Party to endeavour 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. This applies to all the obligations in relation to safeguarding the intangible cultural heritage at a national level.36 This identification process is further elaborated on in article 12, which requires that each State Party ‘shall draw up, in a manner geared to its own situation, one or more inventories of the intangible cultural heritage present in its territory’. While a duty exists to do so, it is dependent on the ability of each State to give full effect to the inventorying of intangible cultural heritage. Given the vast difference between States in terms of their resources and the forms of intangible cultural heritage present in that State, the different national lists are bound to be very different. A range of other measures are encouraged in order to ‘ensure the safeguarding, development and promotion of the intangible cultural heritage present in

35 Blake, op. cit., p. 88. 36 Article 15.

Intangible cultural heritage 375 its territory’.37 These include the adoption of a general policy aimed at promoting the function of the intangible cultural heritage in society, and at integrating the safeguarding of such heritage into planning programmes; establishing competent relevant bodies, and fostering scientific, technical and artistic studies. Furthermore, States shall endeavour to adopt appropriate legal, technical, administrative and financial measures designed to foster the creation or strengthening of institutions for training in the management of the intangible cultural heritage and the transmission of such heritage; ensuring access to the intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage; and establishing documentation institutions for the intangible cultural heritage and facilitating access to them. A similar range of educational, awareness-raising and capacity-building measures are strongly encouraged.38 By necessity, the obligations set out in chapter III are linked to the ability of each State to give effect to them. This, however, causes some difficulty in the context of the broader duties imposed in the Convention. Article 1, for example, simply declares that one of the purposes of the Convention is to safeguard the intangible heritage, and in accordance with article 2(3), this means ‘ensuring the viability of the intangible cultural heritage’. The term ‘ensuring’ requires that States achieve a result. This term is also used in article 1(b), in that States are duty bound to ensure that respect for the intangible cultural heritage of the communities, groups and individuals concerned is achieved; as well as in article 11(a), which requires each State to take the necessary measures to ensure the safeguarding of the intangible cultural heritage. The ability to actually achieve such a result is dependent on many factors, but as a matter of the content of the duty, these are irrelevant, and States are duty bound to actually achieve this result. Usually States are reluctant to commit to achieving what might not be achievable. As such, terms such as ‘will endeavour to’; ‘insofar as is possible’; ‘as appropriate for each State’ or ‘in a manner geared to its own situation’ are used to qualify the obligation. While some forms were originally suggested for article 1, they were considered too weak and omitted.39 However, while this duty to achieve a result is therefore imposed, it is balanced by the fact that determining whether the result has actually been achieved will be difficult, perhaps impossible to determine. This is especially so in relation to the duty contained in article 2(3), which requires that States take ‘measures aimed at ensuring the viability of the intangible cultural heritage’. As Blake notes, something of a contradiction is to be found in this duty. While a result is to be achieved, it is not that of ensuring that the measures mentioned actually ensure the viability of the intangible cultural heritage, but rather that these measures ‘are aimed’ at such a result. As long as the appropriate measures

37 Article 13. 38 Article 14. 39 Blake, op. cit., p. 28.

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have as their aim the viability of the intangible cultural heritage, this duty is fulfilled. It does require that States actively adopt such measures, but it is in that adoption that the duty is fulfilled. This construction is further complicated by the nature of the duty imposed on States in article 11(a), which requires that States take the necessary measures to ensure the safeguarding of intangible cultural heritage. Linked with article 2(3), however, this means taking the necessary measures to ensure that ‘measures aimed at ensuring the viability of the intangible cultural heritage’ are taken. Obviously something of a contradiction, it does convey the difficulty in attempting to impose on States a duty to safeguard the intangible cultural heritage without actually imposing a duty to achieve a specific result. This makes this duty difficult to enforce at an international level. Furthermore, complication then arises in relation to the actual measures taken. For example, in the duty to draw up an inventory of the intangible cultural heritage in its territory, each State is only required to do so ‘in a manner geared to its own situation’; while States are only required ‘to endeavour’ to adopt the measures set out in article 13.

The international safeguarding of intangible cultural heritage The establishment of the organs that will give effect to the international safeguarding of the intangible cultural heritage are, curiously, not addressed under the chapter on the international safeguarding, but in a separate chapter. It is, nevertheless, a central part of the international regime. It addresses three organs that make up the safeguarding system: The General Assembly of States Parties, the Secretariat, and the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage. The first two organs are dealt with in a simple straightforward manner. Article 4 establishes the General Assembly as the sovereign body of the Convention with the power to adopt its own Rules of Procedure. The only condition laid down in the Convention is that it is to meet in ordinary session every two years, though it may in certain circumstances meet in extraordinary session.40 Importantly, the General Assembly ultimately retains control over the implementation of the Convention and acts to check the activities of the Committee. This is reiterated in article 8(1), which stipulates that the Committee is answerable to the General Assembly. The UNESCO secretariat is to prepare the documentation of the General Assembly and that of the Committee, as well as the draft agenda of their meetings, and shall ensure the implementation of their decisions. Its main role, however, is to assist the Committee in its activities.41

40 Article 5. 41 Article 10.

Intangible cultural heritage 377 The Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage Central to the international regime to safeguard the intangible cultural heritage is the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, composed of representatives of 24 States Parties, elected by the General Assembly.42 The make-up of the Committee is to take into account the principles of equitable geographical representation and rotation, and provides for a system ensuring that only half the Committee is renewed every two years.43 Importantly, States elected to the Committee ‘shall choose as their representatives persons who are qualified in the various fields of the intangible cultural heritage’.44 Whilst the Committee is answerable to the General Assembly, it adopts its own Rules of Procedure, and may establish whatever ad hoc consultative bodies it deems necessary to carry out its task. Furthermore, the Committee may invite to its meetings any public or private bodies, as well as private persons, with recognised competence in the various fields of the intangible cultural heritage, in order to consult them on specific matters.45 The actual functions of the Committee are set out in article 7. It has a number of functions that relate to its relationship with the General Assembly, such as submitting operational directives for the implementation of this Convention to the General Assembly for approval, and examining and summarising reports submitted by States Parties for the General Assembly. It also has a number of general functions, such as promoting the objectives of the Convention, encouraging and monitoring its implementation and providing guidance on best practices and making recommendations on measures for the safeguarding of the intangible cultural heritage. Its important functions, however, relate to the construction of the Representative List of the Intangible Cultural Heritage of Humanity List and the List of Intangible Cultural Heritage in Need of Urgent Safeguarding. Furthermore, it is to consider granting international assistance, including the use of the resources of the Fund, for programmes, projects and activities for the safeguarding of the intangible cultural heritage.46 Representative List of the Intangible Cultural Heritage of Humanity The use of lists as a mechanism to safeguard the intangible heritage was a hotly debated issue, and a number of concerns were raised, foremost of which was the

42 Article 15. Originally composed of 18 representatives of States Party, it was increased to 24 after 50 States had ratified the Convention in accordance with article 5(2). The membership in 2009 was Cyprus, Italy, Turkey, Belarus, Croatia, Estonia, Hungary, Cuba, Mexico, Paraguay, Peru, Venezuela, India, Republic of Korea, Vietnam, Central African Republic, Gabon, Kenya, Mali, Niger, Zimbabwe, Jordan, Oman and United Arab Emirates. 43 See article 6(2)–6). 44 Article 6(7). 45 Article 8. 46 Article 7(g).

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risk of creating not only a very large list, but one which embedded a hierarchical element which might endanger intangible heritage not listed.47 In providing for the creation of this list, article 16(1) sets out its central purpose, being ‘to ensure better visibility of the intangible cultural heritage and awareness of its significance, and to encourage dialogue which respects cultural diversity’. Its function is therefore quite different to that of the World Heritage List, and considerably more humble. The regime to safeguard the intangible cultural heritage is clearly underpinned by a belief that education, and raising the awareness of the intangible heritage and importance, and garnering respect for that heritage, is the best method of ensuring its continued vitality and viability. This is reflected in the manner in which the provision of a list was addressed during negotiations and the final form taken in the Convention. A key concern was the risk of creating a hierarchy of intangible cultural heritage, and debate concerned the naming of the list and the resulting manner in which it would then be viewed. As such, terms such as ‘treasure’, ‘exceptional’, ‘outstanding’, ‘universal’, ‘masterpiece’ and ‘world’ were rejected, and the term ‘representative’ chosen. The latter, it was thought, avoided hierarchical connotations.48 The list is therefore designated the ‘Representative List of the Intangible Cultural Heritage of Humanity’. As to what representativeness is, an expert meeting in 2002 considered two possible interpretations: (1) as representative of the creative diversity of humanity and (2) as representative of the intangible cultural heritage of a given community or group.49 As such, it has been argued, the list as a whole ought to be representative, but each individual cultural tradition does not need to be of outstanding universal value, but rather of importance to the given community or group.50 To this extent the content of the list is fundamentally different to that of the World Heritage List. The construction of this list is determined by a process of nomination and selection. Key to its success is the criteria used by the Committee in its deliberations and decision to include a nomination on the List. The Operational Directives of the Convention were adopted by the General Assembly in June 2008, and requires submitting States Parties to demonstrate that an element proposed for inscription on the Representative List satisfies all of five criteria: 1 2

47 48 49 50

The element constitutes intangible cultural heritage as defined in article 2 of the Convention. Inscription of the element will contribute to ensuring visibility and awareness of the significance of the intangible cultural heritage and to encouraging dialogue, thus reflecting cultural diversity worldwide and testifying to human creativity.

Blake, op. cit., pp. 78–80. Ibid., p. 80. Ibid. Schmitt, op. cit., p. 102.

Intangible cultural heritage 379 3 4

5

Safeguarding measures are elaborated that may protect and promote the element. The element has been nominated following the widest possible participation of the community, group or, if applicable, individuals concerned and with their free, prior and informed consent. The element is included in an inventory of the intangible cultural heritage present in the territory of the submitting State Party (or Parties), as defined in article 11 and article 12.

The first inscriptions are due to be made in September 2009. However, in November 2008, the List of Masterpieces of Oral and Intangible Heritage of Humanity was closed and incorporated into the Intangible Cultural Heritage List.51 Some difficulties in this regard arise, however, since a number of States whose intangible cultural heritage is amongst the 90 listed are not yet party to the Intangible Cultural Heritage Convention.52 This will certainly affect the obligations those on-party States have towards that heritage. Furthermore, conceptual problems arise in relation to the content of the List of Masterpieces of Oral and Intangible Heritage of Humanity and that of the representative Intangible Cultural Heritage List. The former is underpinned by concepts more in keeping with the World Heritage Convention in that they require evaluation as to the outstanding value of these ‘masterpieces’. The Intangible Cultural Heritage List, on the other hand, reflects representativeness, and individual elements added to the list are not required to be masterpieces. Whilst masterpieces can be representative, what is of greater concern is that the criteria used in determining the earlier List is not used or transferred by implication into the criteria to be used for determining representativeness. Thus, the Convention is at pains to ensure in providing that the incorporation of the Masterpieces in the Representative List of the Intangible Cultural Heritage of Humanity ‘shall in no way prejudge the criteria for future inscriptions decided upon’ in determining the latter.

The List of Intangible Cultural Heritage in Need of Urgent Safeguarding When considering whether lists ought to be used as a mechanism to safeguard the intangible cultural heritage, it was thought that, at the very least, if lists were to be used, a list of intangible cultural heritage that was endangered was essential. Geared as it is to raising awareness and respect for the intangible cultural heritage, a list of such heritage in danger was considered of greater importance than one

51 Article 31. 52 This includes Bangladesh, Benin, Gambia, Iraq, Jamaica, Malawi, Malaysia, Russia, Tajikistan, Tonga, Uganda and Vanuatu.

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which simply served as a representative list of such heritage. An earlier draft has listed a number of possible threats to the intangible cultural heritage which are illustrative. They include, ‘armed conflicts, distortion causing trivialisation of the relevant heritage, oppression, erosion due to ageing or disappearance of traditional cultural communities, natural disasters, poverty, migration and/or changes affecting places and/or natural resources important for the enactment or performance of the intangible heritage’.53 Ultimately, unlike the World Heritage in Danger List, this list does not require that there be any specific danger or serious threat, but rather that appropriate measures are to be taken when that heritage is in urgent need of safeguarding. Given the wide definition of safeguarding, this leaves it to the community, group or even individual to highlight the need for urgent measures to safeguard the heritage. Article 17, therefore simply provides: With a view to taking appropriate safeguarding measures, the Committee shall establish, keep up to date and publish a List of Intangible Cultural Heritage in Need of Urgent Safeguarding, and shall inscribe such heritage on the List at the request of the State Party concerned. Importantly, the listing of the intangible cultural heritage must be at the request of the State Party concerned. It cannot come from a community, group, individual or even a third State, but from the State in which that intangible heritage is to be located. This of course may be difficult to actually determine where cultures cross State borders, but will effectively relate to the safeguarding potential of that State. Article 17(3), however, introduces some ability of the Committee to list intangible heritage considered to be in extreme urgent need of safeguarding without a State Party’s consent. Unlike the World Heritage in Danger List, this intangible heritage need not be that already listed on the Representative List of the Intangible Cultural Heritage of Humanity. This potential inroad into State sovereignty required some checks and balances. This is provided by requiring that, at the very least, the decision to add to the list be undertaken in consultation with the State Party concerned. It remains to be seen whether the Committee will ever actually list intangible cultural heritage in extreme urgent need of safeguarding against the wishes of the State Party concerned. A further check is provided by the attempt to introduce objective criteria for the determination of when such intangible cultural heritage is to be considered in extreme urgent need of safeguarding. The newly drafted criteria provide that all of the following criteria must be satisfied before inclusion of an element on the list.

53 Blake, op. cit., p. 84.

Intangible cultural heritage 381 1

The element constitutes intangible cultural heritage as defined in article 2 of the Convention.

2

(a) The element is in urgent need of safeguarding because its viability is at risk despite the efforts of the community, group or, if applicable, individuals and States Parties concerned; or (b) The element is in extremely urgent need of safeguarding because it is facing grave threats as a result of which it cannot be expected to survive without immediate safeguarding.

3

Safeguarding measures are elaborated that may enable the community, group or, if applicable, individuals concerned to continue the practice and transmission of the element. The element has been nominated following the widest possible participation of the community, group or, if applicable, individuals concerned and with their free, prior and informed consent. The element is included in an inventory of the intangible cultural heritage present in the territory of the submitting States Party, as defined in article 11 and article 12. (Or States Parties in case of a joint submission.) In cases of extreme urgency, the State Party (or Parties) concerned has been duly consulted regarding inscription of the element in conformity with article 17.3.

4

5

6

The first nominations are to be decided upon by September 2009, and it remains to be seen how this criteria will be interpreted and applied to actual nominations. International co-operation and assistance The purpose of the Convention, to safeguard the intangible cultural heritage, requires, more specifically, the measures designed to instil respect for the intangible cultural heritage of the communities, groups and individuals concerned and to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof. To this end, the Convention introduces a system of international co-operation and assistance, including the establishment of the organs already discussed and the drafting of the two intangible cultural heritage lists. A broader framework of international co-operation and assistance is, however, provided for in the Convention. On the basis that States Parties ‘recognize that the safeguarding of intangible cultural heritage is of general interest to humanity’ an obligation to cooperate at the bilateral, subregional, regional and international levels is undertaken.54 This co-operation ‘includes, inter alia, the exchange of information and experience, joint initiatives, and the establishment of a mechanism of

54 Article 19(2).

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assistance to States Parties in their efforts to safeguard the intangible cultural heritage’.55 These overarching obligations do not necessarily need to be addressed through the international organs established by the Convention. It acts to encourage international co-operation between States outside of the organs established to provide international assistance to States Parties. Unfortunately, chapter V intermingles this structure of international co-operation with that of international assistance. While international assistance might have been considered within the broader conceptual structure of international co-operation, it is limited by article 7(g)(ii) to the assistance provided to States Parties through the functioning of the Committee. This is rather obscure in article 20, which sets out the purposes for which international assistance may be granted, only mentioning the Committee at the very end of the article. Article 20(d) provides that international assistance may be granted for any purpose the Committee may deem necessary. This is essentially a ‘catch-all’ term used so as not to limit the purposes for which the Committee can grant international assistance. The first three purposes, for which the Committee may grant assistance, are: a b c

the safeguarding of the heritage inscribed on the List of Intangible Cultural Heritage in Need of Urgent Safeguarding; the preparation of inventories in the sense of Articles 11 and 12; support for programmes, projects and activities carried out at the national, subregional and regional levels aimed at the safeguarding of the intangible cultural heritage

The importance of the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, more so than the Representative List, in the Conventional regime is made clear by its listing here. However, it also makes clear that international assistance is granted not only for the intangible heritage on this, or indeed the representative List, but for all intangible cultural heritage. 56 It thus takes a much wider conception to that taken in the World Heritage Convention. Importantly, international assistance is to be granted for the preparation of inventories, which are to play an important part in the ultimate construction of the intangible cultural heritage lists. Furthermore, international assistance may be granted to support programmes, projects and activities carried out at the national, subregional and regional levels aimed at the safeguarding of the intangible cultural heritage. The importance of such programmes and the Committee’s role in assisting these, is contained in article 18. Rather curiously placed in chapter IV rather than chapter V, this article addresses the need to promote programmes devised by States, which the Committee considers best reflect the principles and objectives of this Convention. This proactive programme requires that States submit to the Committee proposals for programmes or projects designed to

55 Article 19(1). 56 Blake, op. cit., p. 91.

Intangible cultural heritage 383 promote national, subregional and regional safeguarding of the heritage. The Committee is required not only to select appropriate programmes, projects or activities, according to criteria established by the Committee, but also to actively promote these, as well as disseminating best practices in relation to selected activities. These programmes, projects and activities do not, however, necessarily relate to anything on either of the two intangible cultural heritage lists, and may relate, for example, to broader awareness raising or engendering respect for intangible cultural heritage in general, rather than merely that on either list. Rather confusingly, article 18 provides only for assistance in the preparation of such proposals, and not to the projects themselves. This may be granted in accordance with article 20. In article 18, the Committee merely acts to highlight and support particular programmes, projects or activities undertaken by a State Party, or by States Parties acting together. This interaction between articles 18 and 20 in relation to these programmes is rather complex and unwieldy given the fairly straightforward mechanism for encouraging and promoting such programmes. Also somewhat unwieldy, article 21 gives content to the purposes for which international assistance may be granted by setting out the forms this assistance can take. This includes studies concerning various aspects of safeguarding; the provision of experts and practitioners; the training of all necessary staff; the elaboration of standard-setting and other measures; the creation and operation of infrastructures; the supply of equipment and know-how; and other forms of financial and technical assistance, including, where appropriate, the granting of low-interest loans and donations.57 Whilst articles 22 and 23 set out a general framework for the request of assistance and the Committee’s consideration thereof, much is left to the Committee to determine in the form of the Operational Guidelines. Should the Committee determine that international assistance is appropriate, article 24 requires that the actual provision of assistance is to be regulated by means of an agreement between the beneficiary State Party and the Committee. Furthermore, as ‘a general rule, the beneficiary State Party shall, within the limits of its resources, share the cost of the safeguarding measures for which international assistance is provided’.58 The Fund An important form of international assistance is financial assistance. The Intangible Cultural Heritage Fund is established in chapter VI, substantially replicating the World Heritage Fund mechanism. The Fund, established as a funds-in-trust within UNESCO, is to be made of funds from substantially the same sources as those that apply to the World Heritage Fund. Within the difficult debate as to whether there should be compulsory contributions by States Parties, it was considered necessary to specifically mention, as a source of the fund, ‘funds appropriated

57 Article 21(a)–(g). 58 Article 24(2).

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for this purpose by the General Conference of UNESCO’.59 This, many States considered, would be a large source of funds and necessary in order to ensure that the fund was not wholly made up of the extra contributions made in accordance with article 26. This article essentially requires the compulsory payment of a contribution by States Parties every two years. The amount is to be determined by the General Assembly of States Parties but is to be a uniform percentage of not more than one per cent of its contribution to the regular budget of UNESCO.60 States may, however, enter a reservation, when becoming a party to the Convention, not to be bound by this requirement.61 Nevertheless, those States Parties making such a declaration are not thereby excused from making any contribution, since those States Parties are still to make a contribution, but only to the extent possible for that State. That is, the State is bound to attempt to make a contribution that comes as close as is possible to the contribution they would have had to make if no reservation had been made to article 26(1), and furthermore must make their contribution on a regular two-yearly basis. The reservation to article 26(1) therefore simply acts to introduce some leeway into the amount of contribution made, and to some extent the timing.62 A failure to make the agreed contribution will render that State Party ineligible to be a member of the Committee.63 Voluntary contributions are also encouraged, and a number of agreements have already been entered into between UNESCO and a number of States for the establishment of funds-in-trust for specific purposes.64

The tangible and intangible relationship The interrelation between the tangible and the intangible is not only exceptionally complex, but also misleading in many ways. Yet the manner in which it has arisen in terms of the UNESCO Conventions requires recognition that culture is viewed in some respect through these prisms, and requires consideration as to how they interact. Cited as the case that provided the impetus and driving force that led to the negotiation and adoption of the Intangible Cultural Heritage Convention, the Jemaa el Fna Square in Marrakech serves as an example of the interaction between the tangible and the intangible. The square has been the venue for entertainment since the seventeenth century, with musicians, storytellers, acrobats and snake charmers performing on a daily basis. It is the only place in the Arab world where the tradition of oral literature is still cultivated.65 Whilst threatened to some extent by increased tourism, the most direct threat was through plans to build modern

59 60 61 62 63 64 65

Article 25(3)(b). Article 26(1). Article 26(2). Article 26(4). Article 26(5). These include Japan, Italy, Norway and the Republic of Korea. Schmitt, op. cit., p. 98.

Intangible cultural heritage 385 structures close to the square. In 1996 efforts were made to have the square declared an ‘oral heritage of humanity’, which was achieved when listed on the UNESCO list of Masterpieces in 2001. It is not, however, the square as such which is listed, but the oral traditions that require that square as a cultural space that is declared a Masterpiece. This has led, as Schmitt argues, to the ‘appropriation of a locality’ to protect the intangible heritage.66 That is, that the tangible becomes the vehicle through which the intangible is protected. This, however, brings the tangible cultural heritage regimes into potential conflict with Intangible Cultural Heritage Convention. This has occurred, for example, where cultural heritage sites have obtained protection, in its most heightened form by inscription on the World Heritage List, which then brings about profound social change and degradation of the intangible heritage. This can occur through a number of ways, such as the prevention of the use of cultural heritage sites by the local population, or through the influx of international tourism fundamentally altering the social and economic balance of the local community. For example, the ancient town of Lijiang in Yunnan Province in China, which was inscribed on the World Heritage List in 1997, has attracted a vast number of tourists, resulting in the movement of non-indigenous people into the local Naxi community, and the transformation of the local town square from a place of importance in the daily life of the local Naxi to a tourist market dominated by non-Naxi traders.67 The intangible cultural heritage has, in a sense, then been lost to the protection of the tangible cultural heritage, even though it may have been part of the very entity requiring protection and safeguarding. The same has been shown to be true in the protection of Angkor, particularly through listing on the World Heritage List.68 Essentially conceived as an architectural and archaeological site, the protection regime has failed to conceive of Angkor as a ‘living landscape where people continue a way of life that has links with the people who created Angkor 1,000 years ago’.69 The protection of the Jemaa el Fna Square through concentration of the intangible is likely to provide a more holistic preservation regime than that provided by the World Heritage Convention for the Lijiang square or Angkor.

Conclusion The Intangible Cultural Heritage Convention adds an entirely new dimension to the international conventional structure to protect and safeguard cultural heritage. Whilst the intangible has always, implicitly, existed within the tangible, its

66 Ibid., p. 100. 67 S. Gruber, ‘Protecting China’s Cultural Heritage Sites in Times of Rapid Change: Current Developments, Practice and Law’ (2007) 10 Asia Pacific Journal of Environmental Law 253, 286. 68 T. Winter, ‘Post-conflict Heritage and Tourism in Cambodia: The Burden of Angkor’ (2008) 14 International Journal of Heritage Studies 524, 527. 69 K. Taylor and K. Altenburg, ‘Cultural Landscapes in Asia-Pacific: Potential for Filling World Heritage Gaps’ (2006) 12 International Journal of Heritage Studies 267, 274.

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articulation, separation and protection from the tangible is a challenging and ambitious undertaking. The difficulty in achieving such a regime is evident in the modest obligations and purposes set out in the Convention. Essentially aimed at achieving the ‘viability’ of the intangible cultural heritage, it encourages the development of an environment conducive to the flourishing and production of intangible cultural heritage.70 The regime is clearly underpinned by a belief that education, raising the awareness of the intangible heritage and its importance, and garnering respect for that heritage, is the best method of ensuring its continued vitality and viability. As such, the regime does little in the way of imposing onerous obligations on States Parties, and is particularly ‘soft’ in the creation of binding international norms that require State action.71 The Convention can, however, also be viewed as a counter-balance to the World Heritage Convention. Focussed as it is on sites, monuments, landscapes, etc., it has tended to favour the cultural heritage of those States with substantial physical manifestations of their culture. Whilst the recognition of cultural landscapes and evolving criteria for nomination of natural sites has injected greater recognition of the intangible cultural heritage in the World Heritage Lists, the developed States, particularly those of Europe and North America continue to be represented more so than those of Asia and South America, and particularly of Africa and the Pacific Island States. If the List of Masterpieces of Oral and Intangible Heritage of Humanity is any representation of what might appear on the Intangible Cultural Heritage List, it is likely that the reverse will be true.72 The Masterpieces List has comparatively few European examples, such as The Mystery Play of Elche in Spain. The World Heritage Convention and the Intangible Heritage Convention, whilst overlapping, and at the same time creating potential gaps, also allows for the differences in the manner in which culture is manifested to be addressed internationally and gain normative protection. Whilst the representativeness of the example of the list of the two conventions differ, in a broad sense, together it has expanded the concept of World Heritage.73 A similar system was created for the protection of the intangible cultural heritage. The Intangible Cultural Heritage Convention, however, uses the terms ‘safeguarding’ rather than protection. Blake argues that ‘safeguarding’ is broader than ‘protection’ in that not only is the intangible cultural heritage ‘protected from direct threats to it but positive actions that contribute to its continuance are also taken … From this viewpoint protection has a more negative sense of “protection

70 Quoted in Blake, op. cit., p. 40. 71 F. Lenzerini, ‘Protection of Properties not Inscribed on the World Heritage list’ in Francioni, op. cit., p. 204. 72 Schmitt, op. cit., p. 96. 73 Ibid., p. 105.

Intangible cultural heritage 387 against” while safeguarding implies more positive actions to foster the heritage and the context in which it is developed’.74 Safeguarding is defined so as to include protection as one of a number of measures that will create an environment conducive to the flourishing and production of intangible cultural heritage.75 Other measures include the identification, documentation, research, preservation, promotion, enhancement and transmission of the intangible cultural heritage. Importantly, it was thought necessary to reserve the term ‘protection’ for regimes designed to protect the tangible heritage.76 It is not clear, however, exactly how it ought to be interpreted in this context since its relationship to the tangible would suggest preserving the physical integrity of tangible cultural heritage. In a glossary of terms used during negotiations, ‘protection’ was defined as ‘ensuring that certain social practices and representations do not suffer damage’.77 Again, reference to damage would suggest something relating to the tangible. Yet another means of safeguarding the intangible cultural heritage is ‘preservation’.78 Ultimately the terms ‘protection’, and indeed ‘safeguarding’, are terms of art to be used to capture a broad concept which is given more specific content by the terms of the specific regime to which it relates. Protection of the underwater cultural heritage therefore means something different to that relating to the movement of cultural heritage. Indeed, the very same object, such as illicitly excavated objects from an historic shipwreck and illegally exported to be sold on the black market, may be subject to more than one ‘protection’ regime, each addressing differing components of a much broader international regime to ‘protect’ cultural heritage.

74 75 76 77 78

Ibid., p. 23. Article 2(3). Blake, op. cit., p. 40. Ibid., p. 40. A proposal to replace protection with preservation had been made by Belgium during negotiations. Ibid., p. 40.

8

From five international conventions to an international law of co-operation

Introduction Five international conventions adopted under the auspices of UNESCO, together with the UNIDROIT Convention, address the protection of cultural heritage. Each convention, however, addresses a specific issue, often arising as an ad hoc response to a particular crisis or the recognition of new values in cultural heritage.1 Indeed, the very subject matter and scope of each convention is unique and not designed specifically to interact. Yet the conventions do overlap, providing a complex web of conventional structures and provisions. Whilst this process of adopting cultural heritage conventions over the past 50 years has created unnecessary dichotomies, it also evinces a move away from a purely norm based conventional regime designed to protect the simply physical manifestations of culture, to international conventional regimes which rely less on norms and international enforcement, and more on international co-operation underpinned by a more holistic notion of cultural heritage. This move, and the recognition that the protection of cultural heritage is the common concern of humankind, provides the basis for a principle of international co-operation, best implemented through the co-ordinating function of UNESCO.

A convention of its time Each of the five UNESCO cultural heritage conventions is a unique reaction to a separate and disparate issue relating to different categories or forms of cultural heritage, as well as being a product of its time, burdened by the different social, political and financial contexts in which it was negotiated. This has led to the adoption of conventions evincing different normative and co-operative structures, created unnecessary distinctions and concretised and entrenched certain positions. The adoption of the 1954 Hague Convention to protect cultural heritage during armed conflicts essentially focuses not on the cultural heritage as such, but on the

1 J.A.R. Nafziger and R. Patterson, ‘A Blueprint for the Development of Cultural Heritage Law’ (2004) 9 Art Antiquity and Law 1.

From five international conventions to an international law of co-operation 389 particular circumstances that affect it – the armed conflict. As a reaction to the devastation wrought in the Second World War, the very conceptualisation of cultural heritage as requiring different treatment in times of war and that in times of peace is problematic. This is especially so since the nature of armed conflict has changed dramatically over the past fifty years and the issues facing the armed forces of today in places like Iraq and Afghanistan hardly resemble that faced in Europe in the 1940s. Yet at the time of its adoption, shortly after such a devastating conflict, the distinction between war and peace was acute. In the context of international relations which sought to ensure that such conflict would never again occur, the attempt at recognising the role that can be played by cultural heritage in binding nations together and instilling respect for different cultures that together make up one humanity, this concentration on war time duties was understandable. Its legacy, unfortunately, is to instil a perception of cultural heritage during armed conflict as somehow different to that in times of peace. By the late 1960s the international political landscape had changed dramatically from a decade earlier, and the decolonisation process was in full swing. This process of decolonisation not only changed the balance of power in many international fora, but emphasised national identities, independence and self-determination. The negotiation of the 1970 Convention in this context had the effect of polarising issues, leading to accusations that the resulting convention is overly nationalist and merely supports a policy of retention of cultural heritage.2 This unnecessarily polarised States into ‘source’ States and ‘market’ States, which generally reflected the division between newly emerging States and developed, mostly western colonising States. Underpinning this regime was a hardening of the concept of sovereignty with States reluctant to concede to any obligation which undermined its ability to act in its own interests. Furthermore, the adoption of the 1970 Convention, which overlaps to some extent with the 1954 Hague Convention, but which was designed to address the peace time illicit trade in cultural heritage has exacerbated the artificial distinction between the protection of cultural heritage during armed conflict and during peace-time.3 It is partly this artificial distinction, with the grey area of occupation sitting between armed conflict and peace, which has proved difficult to address in places such as Iraq and Afghanistan. The development of the World Heritage Convention owes much of its structure to the prevailing international law view that State sovereignty ought only to be pierced by the imposition of international norms in relation to pressing issues. This had only really occurred for the first time recently in 1966 with the adoption of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. The possibility of creating a

2 See J.H. Merryman, ‘The Retention of Cultural Property’ (1988) University of California Davis Law Review 477; J.H. Merryman, ‘Cultural Property Internationalism’ (2005) 12 International Journal of Cultural Property 11. 3 C. Bassiouni, ‘Reflections on Criminal Jurisdiction in International Protection of Cultural Property’ (1983) Syracuse Journal of International Law and Commerce 281, 287.

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World Heritage Trust, for example, by which a narrow range of properties would be ‘internationalised’ by being placed under the management of an international entity, was viewed as a considerable intrusion and inconsistent with the underlying notion of international law being underpinned by States’ sovereignty. Whilst human rights might be a justifiable basis for intrusion in the affairs of a State, the protection of natural and cultural heritage was less so, and in the end, only justified for a limited narrow range of properties considered to have outstanding universal value. Over thirty years later, when the fourth UNESCO cultural heritage convention was adopted, the international political view on State sovereignty, and the recognition of pressing global issues that faced all States as a whole, had changed the negotiations landscape. However, the existing international cultural heritage conventions had done much to embed some of the dichotomies and contrasting positions adopted in the earlier conventions. The conflict creating dichotomy between market States and source States created in the 1970 Convention cast a cloud over the negotiations concerning the protection of the underwater cultural heritage, particularly the extent to which the cultural heritage might be the object of economic utilisation. In many ways the resulting convention has reinforced these conflicts. At the same time, the concerns addressed in the Underwater Cultural Heritage Convention reflect a concern for the governance of international spaces beyond the jurisdiction and sovereignty of individual States. To this end, a more co-operative international regime was fashioned. The development of the Intangible Cultural Heritage Convention reflects the international context of a growing recognition of the interdependence of States in issues such as the environment, global warming, overfishing and free trade, and concerns over individual human rights; with its concomitant recognition that State sovereignty cannot be used to resist these developments. It embodies the growing recognition of inter-dependence, respect, and co-operation between States.

The extent of overlap between the cultural heritage conventions Each UNESCO cultural heritage convention is designed as a self-contained regime. Whilst adopted under the auspices of UNESCO, it has an existence separate from UNESCO (though it may utilise UNESCO resources), and its operation on the international plain is entirely dependent on the States Parties to it. Yet, while a separate international regime, each convention has been adopted in a substantially similar form, and in its broadest sense, addresses the same thing: cultural heritage.4 As such, similarities not only exist between the conventions, but indeed co-exist in the sense that a State may be a party to more than one

4 G. Garducci, ‘The 1972 World Heritage Convention in the Framework of other UNESCO Conventions on Cultural Heritage’ in F. Francioni, The 1972 World Heritage Convention, Oxford: Oxford University Press, 2008, p. 364.

From five international conventions to an international law of co-operation 391 convention whose terms might very well apply to the same cultural heritage. The degree of overlap in application between the conventions is not necessarily one of design. As such, some of the conventional provisions might reinforce one another while others stand in contrast. A cursory consideration of the overlap between these conventions reveals both conflicts and mutually supporting provisions. The 1954 Hague Convention, designed to provide protection for cultural heritage during armed conflict, includes within its remit both movable and immovable cultural heritage. Not only does the conventional regime attempt to ensure the protection of historic buildings, etc. but also to act in ways that prevents the theft, pillage, misappropriation or vandalism of movable cultural heritage.5 Furthermore, the First Protocol specifically addresses the obligations of an occupying power to prevent the exportation of the cultural heritage from the occupied territory.6 Any cultural heritage covered by this regime may also fall within the scope of the 1970 Convention. Specifically, the 1970 Convention also addresses the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power, deeming such export or transfer illicit.7 A State party to both these conventions may therefore be under an obligation, if an occupying power, not only to prevent the export of cultural heritage from the occupied territory, but also to prevent the importation into its territory of that cultural heritage. The extent of the latter obligation, however, will depend on that State’s interpretation of the 1970 Convention. This simple interaction of the 1954 and 1970 Conventions can become a complex web of international duties. Take, for example, the US involvement in the Second Gulf War. At the time of the conflict, the US was a party to the 1970 Convention but not a party to the 1954 Hague Convention or First Protocol. As such, it might not be under a duty to prevent the exportation of cultural heritage from Iraq as provided for in the First Protocol, and at the same time, might only be under a duty to prevent the importation of Iraqi cultural heritage stolen from the Baghdad and other museums, or acquired by US museums.8 It would not, according to its implementation of the 1970 Convention, be under an obligation to prevent a private US citizen importing cultural heritage illicitly exported from Iraq if that heritage was not stolen from an Iraqi institution. The US has, however, recently become a party to the 1954 Hague Convention, but not to the First Protocol. Its obligation to prevent the export of cultural heritage from Iraq (if still considered an occupied territory), will not be governed by the First Protocol, but by the 1970 Convention, as will the import of such heritage into the US, while the prevention of the theft, pillage or misappropriation of cultural heritage will be governed by the

5 6 7 8

Articles 4(3) and 5, 1954 Hague Convention. Article 1, First Protocol. Article 11, 1970 Convention. Taking a narrow interpretation of articles 3 and 7, 1970 Convention.

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1954 Hague Convention. These duties will be further complicated by considering the extent to which any of the duties embodied in the 1954 Hague Convention or First Protocol might be said to reflect customary international law. Furthermore, since the two conventions operate separately, though in parallel, the duties owed under each convention may be related to different States party to each Convention. This can be particularly problematic when operating under a joint military regime such as NATO or, as occurred in Iraq, under a Coalition authority. Unforeseen difficulties from the interaction between the 1954 Hague Convention and the 1970 Convention can arise, as illustrated in the case of the conflict in Afghanistan. Given its policy of destroying pre-Islamic sculpture which offended their notion of Islam, the Taliban systematically destroyed all such sculpture, including that contained in the Kabul Museum and the Bamiyan Buddhas. In order to protect Afghan cultural heritage a ‘Museum in Exile’ was established in Budendorf, Switzerland. This, however, proved difficult since technically the importation of such heritage from Afghanistan contravened the 1970 Convention.9 The adoption in 1972 of the World Heritage Convention introduced a cultural heritage regime vastly different from that of the earlier two conventions. To the extent that it addresses immovable cultural heritage, it does not directly overlap with the 1970 Convention. However, again, both might be applied to the similar fact scenario. For example, a number of sites on the World Heritage List in Danger are on that list precisely because they are in danger from unregulated excavation or from the looting of the sites. Angkor, for example, was placed on the World Heritage in Danger list in 1992, given the risk posed to it from looting. Indeed, the listing of a site of the World Heritage List may expose it to greater danger from looting since its listing raises its profile and significance, making objects looted from there potentially more valuable as well as potentially exposing the site to greater number of visitors, thus increasing the opportunity for looting.10 Since the World Heritage Convention imposes obligations and benefits on the State in whose territory the cultural heritage is found, and which, being immovable, cannot be said to be subject directly to export control, little conflict arises between the application of these two conventions. Indeed, they ought to work in parallel so as to restore looted artefacts to the World Heritage site with which it forms an integrated whole. The UNIDROIT Convention serves the same purposes. The World Heritage Convention has a much more direct interaction with the 1954 Hague Convention and Second Protocol. This might not have originally been intended. Simmonds regards it as ‘ambiguous whether the Convention applies in the event of war’.11 This uncertainty arises because the draft preamble to the World Heritage Convention had contained the phrase ‘in times of peace’,

9 D. Gilman, The Idea of Cultural Heritage, Leicester: Institute of Art and Law, 2006, p. 7. 10 Garducci, op. cit., p. 370. 11 J. Simmonds, ‘UNESCO World Heritage Convention’ (1997) 2 Art Antiquity and Law 253, 274.

From five international conventions to an international law of co-operation 393 but had been deleted. As such, an interpretation consistent with article 31(1) of the Vienna Convention does not prevent the application of the Convention in times of war. Indeed, in a great many cases World Heritage sites are found in war torn States, the most notable recent cases being Iraq, Afghanistan and the Balkans.12 The latter is particularly illustrative in that the Old City of Dubrovnik was declared a world heritage site prior to the armed conflict, and precisely because of the armed conflict, was placed on the World Heritage in Danger List.13 It is unfortunate that even though both the 1954 Hague Convention and World Heritage Convention was applicable, the Old City of Dubrovnik was intentionally and extensively damaged.14 It is notable that the Old City of Dubrovnik, while on the World Heritage List and the World Heritage in Danger list, was not subject to the 1954 Hague Convention’s Special Protection regime designed to protect ‘cultural property of very great importance’. While this is partly because of the difficulties in the latter regime, it also illustrates the difficulties in reconciling the provisions of each regime in which one requires that the cultural heritage be ‘of very great importance’, while the other requires that the heritage be of ‘outstanding universal value’. The adoption of the ‘Enhanced Protection’ regime in the Second Protocol to the 1954 Hague Convention has further, and in a sense intentionally, created differing criteria from that evident in the World Heritage List, and the Special Protective regime it intended to replace. The drafters of the Second protocol ‘eschewed the expression “outstanding universal value”, used in the World Heritage Convention in order to ensure that that the List of Cultural Heritage under Enhanced Protection did not coincide with the World Heritage List’.15 However, it appears that some States, such as the UK, do intend to use the World Heritage List as a basis for nomination for inclusion in the Enhanced Protection regime.16 The interaction between the 1954 Hague Convention and World Heritage Convention is possibly much broader than discussed above, as illustrated by Spain’s definition of ‘cultural property’ for the purposes of the 1954 Hague Convention. In its implementation report, Spain took a restrictive approach, submitting a list of immovables which substantially replicated the list of properties that Spain has submitted for consideration for listing on the World Heritage List. This restrictive approach, limited to properties of possible ‘outstanding universal value’ is, according to O’Keefe, possibly a breach of the obligation set out in

12 For example, The Cathedral of Saint James in Sibenik and historic city of Trogir in Croatia, Old bridge area of the old city of Mostar in Bosnia and Hertzegovina, Ohrid region in Macedonia, Decani and Studeica Monestries in Serbia, Hatra and Ashur in Iraq and Minaret and archaeology remains of Jam in Afghanistan. 13 Article 11(4), World Heritage Convention specifically empowers the Committee to inscribe sites on the Danger List if threatened by the outbreak or the threat of an armed conflict. 14 R. O’Keefe, The Protection of Cultural Property in Armed Conflict, New York: Cambridge University Press, 2006, p. 314. 15 O’Keefe (2006) op. cit., p. 265. 16 Ibid., p. 266.

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article 1 of the 1954 Hague Convention in terms of defining the property subject to that regime.17 Ordinarily the World Heritage Convention and the 1954 Hague Convention and Protocols are capable of working in parallel, but it is clear that since they have different core objectives, instances may arise where the terms of the conventions require some consideration in order to avoid conflict, or at least, contradictions. At the same time, the fact that the conventions work in parallel can provide another layer of protection to World Heritage sites in danger, directly or indirectly, from armed conflict. For example, UNESCO has initiated a project to protect the world heritage sites situated in the Democratic Republic of Congo. The five world heritage sites in the Republic, the Okapi Wildlife Reserve and the Garamba, Kahuzi-Biega, Salonga and Virunga National Parks18, face considerable danger, particularly from poaching, caused by the continued armed conflict in the area. Whilst natural heritage rather than cultural heritage sites, the UNESCO campaign seeks to utilise both the World Heritage Convention and the 1954 Hague Convention, in requiring the belligerent parties to adhere to their international conventional and customary international law obligations.19 Very early on in the negotiation process for the World Heritage Convention, the definition of sites had included underwater sites, but this was removed in the very next stage of negotiation.20 Whilst not specifically included, there is nothing to suggest that underwater sites are specifically excluded. The adoption of the Underwater Cultural Heritage Convention therefore potentially overlaps with the World Heritage Convention in that it might be possible for some underwater cultural heritage sites to be listed on the World Heritage List. This overlap was, in one sense, not intended since the Underwater Cultural Heritage Convention aims primarily to address the protection of underwater cultural heritage beyond the territorial jurisdiction of coastal States. Nevertheless, States Parties have discretion to apply the Convention to underwater cultural heritage within its jurisdiction. The World Heritage Convention, on the other hand, requires nominations for properties to be included on the World Heritage List from States in whose territory the property is situated. The extent to which this applies beyond the territorial sea of a coastal State is uncertain. While States can, and have, nominated marine spaces within their territorial seas for World Heritage listing, difficulties arise beyond that since the coastal States do not have full sovereignty over those areas. To the extent that the exclusive economic zone and the continental shelf provide the coastal State with competencies in relation to the natural resources in those areas, it is possible for a coastal State to consider parts of these zones to be natural

17 Ibid., p. 108. 18 P. Bonneville, The World Heritage: UNESCO’s Classified Sites, Quebec: Bonneville Connection, 2006, pp. 344–6. 19 L. Patchett, ‘Activities to support the world heritage fund’ in Francioni, op. cit., p. 295. 20 S.M. Titchan, On The Construction of Outstanding Universal Value, Unpublished PhD Thesis, Canberra: Australian National University, 1995, p. 87.

From five international conventions to an international law of co-operation 395 World Heritage areas. This might not, however, extend to cultural heritage in these maritime zones. In any event, the regime established in the Underwater Cultural Heritage Convention requires State co-operation in the protective regime for underwater cultural heritage found beyond States jurisdiction, necessitating a joint application for listing on the World Heritage List. More difficult, though, is the extent to which cultural heritage in the contiguous zone might be eligible for listing on the World Heritage List. The Underwater Cultural Heritage Convention overlaps with the 1970 Convention in that it too attempts to regulate the movement of cultural heritage that is illicitly excavated. The 1970 Convention in itself addresses the case where the underwater cultural heritage is stolen or illegally exported from a State.21 The Underwater Cultural Heritage Convention, whilst directed primarily at regulating the manner in which the underwater cultural heritage is excavated, does require that States Parties take measures to prevent the entry into their territory, the dealing in, or the possession of, underwater cultural heritage illicitly exported and/or recovered, where recovery was contrary to this Convention.22 For a State party to both Conventions, the difficulty arises in that its national legislation will have to deal with the importation of illicitly exported cultural heritage, whether terrestrial or underwater, in an instrument which nevertheless will address two regimes with potentially different reciprocal States Parties. The adoption of the Intangible Cultural Heritage Convention adds a completely new concept to the existing international regime, and overlaps with the existing conventional regimes in a broad sense it that all the conventional regimes are underpinned by cultural values, and much of the cultural heritage captured within the scope of these regimes will have intangible cultural heritage practices associated with it. This might include the cultural heritage covered by the 1954 Hague Convention and its Protocols, that subject to the 1970 Convention, and most specifically, that addressed in the World Heritage Convention. Indeed, the World Heritage Convention provided the basis for the recognition on the intangible cultural heritage through its recognition of cultural sites and cultural landscapes. The Operational Guidelines, for example, give specific recognition to this by including, as a criteria for the listing of a natural heritage sites, that it ‘bears a unique or at least exceptional testimony to a cultural tradition that is living or has disappeared and /or is directly or tangibly associated with events, living traditions, beliefs, ideas’.23 Similarly, the text for authenticity requires that ‘cultural heritage must be considered and judged primarily within the cultural context to which it belongs’, and that the cultural values are expressed through a variety of attributes, including: ‘form and design, use and function, traditions, techniques,

21 See for example the seizure of illicitly exported cultural heritage from the wreck of the Tek Sing by Australian authorities, C. Forrest, ‘Australia’s Protection of Foreign States’ Cultural Heritage’ (2004) 27 University of New South Wales Law Journal 605. 22 Article 14, Underwater Cultural Heritage Convention. 23 Operational Guidelines 2008, para. 77.

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spirit and feeling and language and other forms of intangible heritage’.24 The use of the World Heritage Convention as a framework for the structuring of the Intangible Cultural Heritage Convention assists in the application of both conventions in parallel. The fact that the UNESCO cultural heritage conventions might overlap and more than one apply to a given fact scenario, or particular cultural heritage, poses problems not only in reconciling the implementation of the provisions of each convention, but also in conceptualising the notion of cultural heritage in a meaningful way that will allow States to develop consistent policies and interact with one another in matters relating to cultural heritage in a consistent and principled way.

From norms to international co-operation The process of protecting cultural heritage in international law has evolved from one directed at the physical preservation of objects or individual monuments or buildings, reflected in the 1954 Hague Convention and 1970 Convention, to one which attempts to capture a larger and more holistic cultural heritage in the form of whole cities and cultural landscapes provided for in the World Heritage Convention, and finally to a form of heritage which focuses on the value of the heritage to contemporary society provided for in the Intangible Cultural Heritage Convention. This Loulsanski described as a move towards a people-centred, functional approach in regard to heritage’.25 It involved a greater recognition of the values attributed to the cultural heritage and a conscious reflection of these values within the international conventional regimes. Rather than providing simply for the physical preservation of cultural heritage, and leaving the recognition of its inherent and attributed values as assumptions underpinning the protective regime, to be given content through national implementation, the latter conventions posit the cultural heritage within a much broader social context. The recognition of the role of the intangible cultural heritage in the process of sustainable development, for example, makes the regime an integral part of the overall development regime of both the State and the international community as a whole.26 This move from an object-centred approach to a functional approach has posed challenges to the way in which existing international conventional norms are interpreted and new norms constructed. The earlier regimes, such as the 1954 Convention and 1970 Convention, which seek to introduce standard setting norms, become difficult to reconcile with

24 Operational Guidelines 2008, paras 81–2. 25 T. Loulanski, ‘Revising the Concept of Cultural Heritage: The Argument for a Functional Approach’ (2006) 13 International Journal of Cultural Property 207, 212. 26 T. Kono, ‘UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development’ in A.A. Yusuf (ed.), Standard-setting in UNESCO: Normative Action in Education, Science and Culture, Leiden: Martinus Nijhoff and UNESCO Publishing, 2007, p. 237.

From five international conventions to an international law of co-operation 397 regimes which attempt to place the cultural heritage more functionally within society. These require co-operative regimes which seek to give effect to the values attributed to the cultural heritage that cannot, by their nature, be norms requiring specific State action. This stands in stark contrast to the normative structure evident in the 1954 Hague Convention and the 1970 Convention and to some extent to the Underwater Cultural Heritage Convention. The normative conventional regimes The 1954 Hague Convention and the 1970 Convention attempted to introduce a normative international regime to protect cultural property. The 1954 Hague Convention, the oldest UNESCO convention on the protection of cultural heritage, contains the strongest normative provisions of all the UNESCO conventions. Most of its provisions use the imperative term ‘shall’ requiring specific State action, or inaction, which relates directly to another State Party. For example, article 4(3) requires that States Parties ‘shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party’, while article 10 provides that ‘cultural property under special protection shall be marked with the distinctive emblem’ during armed conflict. In the context of two or more States directly involved in an armed conflict, the imposing of specific international obligations gives rise to direct State responsibility and the imposition of sanctions for breaches of these obligations. Furthermore, the normative structure also allows for the possibility of imposing individual criminal liability for breaches of the normative provisions.27 The 1999 Second Protocol to the 1954 Hague Convention attempted to strengthen the conventional regime by imposing more precise obligations on States, particularly by clarifying the circumstances in which a State can invoke the doctrine of military necessity. It too uses strong normative language to impose binding obligations on States Parties. This resulting regime creates obligation between individual States, giving rise to a structure which involves an injured State claiming against a transgressor State. The 1970 Convention also sought to impose a normative regime which required mutual recognition of each State Party’s export prohibitions and required States to act in a specific way in relation to other States Parties. Unfortunately, the extent of the obligations imposed was substantially undermined by the need for compromise between market States, particularly the US, and source States. Unlike the 1954 Hague Convention, which directs States’ actions directly during armed conflicts, the 1970 Convention requires States Parties to introduce into their national laws provisions which will regulate the illicit trade in cultural heritage. The form of imposing such obligation is to require States Parties to ‘undertake’ to achieve a specific result. For example, article 6(a) provides that States ‘undertake … to introduce an appropriate certificate in which the exporting State would specify that the export of the cultural property in question is authorized’. Whilst creating a

27 Article 28, 1954 Hague Convention; article 15 1999 Second Protocol.

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binding international obligation, a number of provisions of the 1970 Convention introduce caveats that undermine the normative status of the obligation, making it difficult to enforce. For example, article 7(a), whist requiring States Parties to ‘undertake’ to ‘take the necessary measures to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention’, this undertaking is limited to the extent that it is ‘consistent with national legislation’ of that State. The resulting Convention is one which adopts a normative structure and seeks to impose binding normative obligations. Unfortunately the normative provisions are generally vague and ambiguous, undermining the imposition of any precise legal obligation. Nevertheless, this normative regime does result, like the 1954 Hague Convention, in essentially pitting two States against one another: the ‘exporting’ State and the ‘importing’ State. If was partly for this reason that UNESCO initiated the process which would lead to the adoption of the UNIDROIT Convention in 1995. At its heart, the UNIDROIT Convention deals with cultural heritage in a manner avoided as far as possible in the UNESCO conventions – the recognition of cultural heritage as private property. The very concept of property, it has been argued, lies at the centre of the problem of protecting and safeguarding cultural heritage.28 Cultural heritage, including to some extent the intangible cultural heritage, is a commodity with an economic value which the law protects through property regimes. In almost all States, this involves either private or State ownership. Fundamentally, there is no difference between the bundle of rights that make up private ownership and that of State ownership. It is simply a different entity that embodies those rights. Whilst in some States all rights relating to cultural heritage lie with the State, in others it lies with individuals; while still in others, it is divided up between the State and the individual such that the State reserves some rights for itself while leaving others to the individual. The UNIDROIT Convention attempts to bridge these divides by providing a common, minimum, normative regime that regulates issues of ownership, allowing direct access to the court of a State Party by private individuals or States. Once a State becomes a party to the Convention and implements its provisions nationally, private individuals will be directly affected through the ability to take action and have action taken against them. This naturally has a direct impact on the way in which different legal systems deal with such issues. As such, the Convention reflects ‘a minimum set of uniform rules’29 which reflects a delicate compromise between the different legal systems, particularly between the civil and common law jurisdictions, and between the interests of exporting and importing States. The effect of this normative regime is to require States Parties to make changes to their national laws, a process generally resisted in cultural

28 J. Carman, Against Cultural Property: Archaeology, Heritage and Ownership, London: Duckworth, 2005, p. 28. 29 L.V. Prott, Commentary on the Unidroit Convention, Leicester: Institute of Art and Law, 1997, p. 74.

From five international conventions to an international law of co-operation 399 heritage matters. As such, the Convention has not been well supported, with a mere 29 States Parties. No common law State has yet become a party, nor has any ‘importing, market’ State. The Underwater Cultural Heritage Convention too provides for the imposition of binding norms requiring State action, particularly with regard to the movement of underwater cultural heritage recovered in a manner not in conformity with the rules of the Annex. At the same time, though, it introduces a co-operative scheme for the protection of underwater cultural heritage beyond coastal States’ jurisdiction. This co-operative scheme is, however, embedded with norms requiring States’ action, and which gives rise to claims by one State against another. Many would argue that these normative conventional regimes are generally a failure.30 Posner, for example, points to the destruction in Iraq and the Balkans as evincing the 1954 Hague Convention’s failure.31 Lowenthal too regards breaches of the Conventional norms as evidence of their failure.32 Whilst on the one hand Posner attributes this failure to the ambiguity and vagueness in the language used in the Convention, he also attributes it to the hesitancy of a number of important States, such as the US and UK, to become a party to the Convention. This hesitancy Posner attributes to a reluctance of States to be bound by normative international obligations.33 That is, States ‘do not want to take on strong obligations’ and are resistant to any precise legal duty that will hamper military operations.34 Gerstenblith reiterated this by arguing that the Second Protocol has been unpopular because ‘market nations dislike the obligation to return movable cultural objects and other obligations that might interfere with the operation of the art market’.35 Unsurprisingly then, the 1999 Second Protocol has less than half the number of States Parties than the original 1954 Hague Convention. The Underwater Cultural Heritage Convention has struggled to attract States Parties, taking six years to achieve the 20 ratifications to bring it into force. Few of the States Parties to the Convention have significant underwater cultural heritage in their territories, and even fewer have any salvage industry requiring regulation in accordance with the Convention. As such, the obligations imposed by the

30 E.A. Posner, ‘The International Protection of Cultural Property: Some Skeptical Observations’ (2007) 8 Chicago Journal of International Law 213, 214; D. Lowenthal, ‘Why Sanctions Seldom Work: Reflections on Cultural Property Internationalism’ (2005) 12 International Journal of Cultural Property 393, 394; Merryman (2005) op. cit., pp. 11–33. 31 Posner, op. cit., pp. 214 –7. 32 Lowenthal, op. cit., p. 394. 33 Posner, op. cit., p. 220. 34 Posner, op. cit., pp. 218 and 226–8. 35 P. Gerstenblith, ‘From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st Century’ (2006) 37 Georgetown Journal of International Law 245, 267.

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Convention will not pose undue burdens on those States. The States with significant activities directed at their underwater cultural heritage have not become a party to the Convention, evincing a reluctance to be bound by the normative terms of the convention. As such, while the Convention has come into force, its impact is felt more in its educational and awareness raising role than in its imposition of binding international norms. Similarly, the 1970 Convention has been viewed as impotent in addressing the illicit trade in cultural heritage. Posner, for example, points not only to the fact that many market States are not a party to the Convention, but that those that are do not take the conventional regimes seriously, citing the lack of any real effort to provide national enforcement mechanism in the market States.36 This is particularly so even when the normative conventional regimes require States parties to impose penalties, in some cases criminal penalties, for transgressions. This problem of enforcement, however, extends beyond the imposition of any individual responsibility for a breach, effectively, of a Convention’s normative provision, but to the very nature of enforcement of conventional obligations in international law. Quite simply, few of the obligations imposed in these normative conventional regimes are capable of international enforcement. International enforcement One of the great difficulties in international law is the ability, or rather inability, to effectively punish States that breach their conventional duties. Posner, for example, argues that even if the US had been a State Party to the 1954 Hague Convention and its Protocols, the US would most likely have ‘gone ahead and violated these treaties with the approval or indifference of most of the world’ if its priorities required it to do so.37 This indifference arises not only because it might be difficult to prove that any specific duty had been breached, given the vagueness of the language used in creating these obligations, but also because the international system of imposing sanctions on the defaulting State is not well developed. The breach by one State of a conventional norm amounts to an internationally wrongful act, and if its consequences injure a particular State, gives rise to a requirement for reparation.38 The question of when a State is internationally responsible for a wrongful act is particularly difficult to ascertain and the subject of much debate.39 Nevertheless, the consequences of committing an international wrongful act can be briefly considered in the context of the UNESCO cultural heritage conventions.

36 37 38 39

Posner, op. cit., p. 219. Posner, op. cit., p. 221. M.N. Shaw, International Law, 6th edn, Cambridge: Cambridge University Press, 2008, p. 778. See generally Shaw, op. cit, pp. 778–800.

From five international conventions to an international law of co-operation 401 The first available sanctions for an injured State Party or a State Party owned obligation erga omnes, is to require the cessation of the internationally wrongful act. This is naturally only open to acts which are continuing, and which, through its cessation, will sufficiently address the matter. The difficulty arises when the offending State does not cease the offending activity. The typical mechanism for the enforcement of international obligations is the use of countermeasures. A State that has been affected by the international wrongful act of another State may resort to reprisals or countermeasures, that is, the commission of an act which in itself would be a wrongful act, but which is regarded as a legitimate act given the other State’s previous wrongful conduct. Countermeasures in the form of committing the same international act as the defaulting State is, of course, entirely inappropriate in most cases involving some threat or damage to cultural heritage, especially since it requires consideration of proportionality and reciprocity.40 For example, Francioni and Lenzirini, concluding that the destruction of the Bamiyan Buddhas was an internationally wrongful act, contend that there is justification for the adoption of countermeasures such as the suspension of technical assistance and withdrawal of financial aid to Afghanistan.41 A similar threat to withhold assistance had been taken in 1967 in reaction to Israel’s occupation of Palestinian territories, and in particular, in the conduct of archaeological excavations in the Palestinian claimed Jerusalem.42 However, the imposing of such measures would be quite contrary to the very purpose of the World Heritage Convention, the more so in the case where the regime responsible for the destruction is no longer the governing regime. The fact that the rebuilding of the Buddhas is a major UNESCO initiative underscores this. Countermeasures may include, for example, the imposition of trading sanctions; though the legality of international sanctions, especially those adopted unilaterally, is the subject of intense debate.43 It is highly unlikely that in relation to a dispute involving cultural heritage resort would be made to sanctions. More importantly, again, the use of such measures is likely to have the effect of further threatening the cultural heritage rather than addressing the original wrongful act. Its only possible use might be in relation to cultural heritage in an occupied territory being threatened or damaged by a State’s internationally wrongful act. A less threatening countermeasure may be retorsion, such as the suspension of diplomatic relations with the offending State. In most cases, the vast number of issues that arise between States will prevent the suspension of diplomatic relations

40 R. O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53 International and Comparative Law Quarterly 189, 207. 41 F. Francioni and F. Lenzirini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14 European Journal of International Law 619, 632. 42 N. Schrijver, ‘UNESCO’s Role in the Development and Application of International Law: An Assessment’ in Yusuf, op. cit., p. 380. 43 Francioni and Lenzirini (2003) op. cit., p. 629.

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in all but the most serious of disputes. This is unlikely to include the protection of cultural heritage. In the realm of cultural heritage, however, perhaps the only real sanction that can be imposed is international condemnation of the wrongful act. The ability of the international community, severally and jointly, to subject a State’s treatment of its, or another State’s, cultural heritage to international condemnation is perhaps the only realistic measure possible. Whilst available, it is not particularly effective, as was evident in the destruction of the Bamiyan Buddhas.44 While this did not, strictly, amount to an internationally wrongful act, given that it is questionable what obligations, if any, a State currently owes to the international community as a whole in respect of cultural heritage situated on its territory, the development of this form of ‘sanction’ is of some importance. Rarely in cultural heritage matters will the other sanctions be raised, such as judicial proceedings or countermeasures, and diplomatic pressure and condemnation lie at the core of the protective measures for cultural heritage. The World Heritage Convention, for example, contains few duties that States are required to fulfil which are capable of being enforced. The most effective sanction is that of international condemnation that might arise from any number of sources. The World Heritage Committee has some powers which act as sanctions, such as removing a site from the World Heritage List, or placing a site on the World Heritage in Danger List. Such measures are, however, counter-productive to the very aim of the Convention and used sparingly. Only one property has ever been removed from the World Heritage List45, and most properties placed on the Danger List are done so with the support of the territorial State. The World Heritage Committee’s most useful weapon is therefore adverse publicity for the territorial States, used on a number of occasions.46 Importantly, the role of NGOs, such as the International Council on Monuments and Sites, the International Union of the Conservation of Nature, the International Committee of the Blue Shield, the International Centre for the Study of the Preservation and Restoration of Cultural Property and the International Committee of the Red Cross, in the conventional regime provides a non-diplomatic avenue for international condemnation.47 NGOs, distanced as they are from the interest of States, are capable of exerting pressure through adverse publicity that many States would be reluctant to do. Criminal offences against cultural heritage in international law The enforcement of international cultural heritage laws relies mostly on noncriminal sanctions such as the return, restitution and forfeiture of stolen goods.48

44 45 46 47 48

O’Keefe (2004) op. cit., p. 207. Arabian Oryx Sanctuary in Oman. Including, for example, that of Cologne Cathedral in Germany. Simmonds, op. cit., p. 253. J.A.R. Nafziger, ‘International Penal Aspects of Protecting Cultural Property’ (1985) 16 The International Lawyer 835, 835–52; Bassiouni, op. cit., pp. 281–322.

From five international conventions to an international law of co-operation 403 Most of the conventions and recommendations are designed to create an infrastructure that will prevent offences relating to cultural heritage rather than a system of penal measures.49 Nevertheless, a number of the conventions do require States Parties to impose penalties for violations of the convention. Only the 1954 Hague Convention, and the Second Protocol in particular, require States Parties to establish criminal offences for violations of the Convention.50 The 1970 Convention simply requires that States establish ‘penalties or administrative sanctions’ for violations of certain of the Convention’s provisions,51 while the Underwater Cultural Heritage Convention requires only that ‘sanctions be imposed for violations of the conventional norms’.52 As such, the use of criminal sanctions in implementing the conventional norms is entirely dependent on each State Party and used with varying degrees of success. While the 1954 Hague Convention and its Second Protocol provide the most stringent provisions in relation to the imposition of criminal sanctions, few prosecutions have actually occurred. The prosecutions taking place in the International Criminal Tribunal for the Former Yugoslavia, while addressing the protection of cultural heritage during armed conflict, have for the most part done so tangentially. The focus of these prosecutions has generally been on the protection of persons, particularly from genocide. Arguably confusing the protection regime for person and property,53 the intentional destruction of particularly religious buildings has been equated with a form of cultural genocide, and through the fact that many of these religious buildings also have cultural and historical significance, so the protection of cultural heritage has been indirectly implicated. Conventional norms as the sustainer of conflict The use of normative standard setting instruments to address the protection of cultural heritage has not only arisen in an attempt to address existing conflict, but has also acted to reinforce these conflicts. The first UNESCO cultural heritage convention was drafted in the context of the very embodiment of conflict – war. Bowing to the doctrine of military necessity, the conventional regime places the protection of cultural heritage during armed conflict within the division between belligerents, providing, for example, the conditions that determine when one

49 Nafziger (1985) op. cit., p. 838. 50 Article 28, 1954 Hague Convention; article 15, 1999 Second Protocol. 51 Article 8, 1970 Convention, which requires States Parties to impose penalties or administrative sanctions on any person responsible for infringing the prohibitions referred to under articles 6(b) and 7(b). See also article 10(2), 1970 Convention. 52 Article 17, Underwater Cultural Heritage Convention. 53 H. Abtahi, ‘The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal of the Former Yugoslavia’ (2001) 14 Harvard Human Rights Journal 1, 31.

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belligerent may attack another belligerent’s cultural heritage.54 So too does the 1970 Convention, which addresses the problem of the illicit trade in cultural heritage within the ‘market’ or ‘importing’ State vs ‘source’ or ‘exporting’ State dichotomy.55 The Underwater Cultural Heritage Convention has, in some respects, concretised the distinction between the maritime archaeology and salvage, polarising positions. It is not surprising then, that Nafiger notes that ‘the normative framework to protect cultural heritage is essentially adversarial’.56 This is not only so in an international sense when a State identifies with a particular polarised and concretised position, such as being a ‘source’ State, but also in the way that States implement the conventional regime and address specific disputes both international and nationally. On the international plain, few of the conventional regimes provide for a dispute resolution system between States.57 While the 1954 Hague Convention Regulations do provide for arbitration in relation to an objection to another State’s registration of cultural heritage for Special Protection,58 it provides no other dispute settling mechanism.59 The 1970 Convention merely provides that States Parties engaged in a dispute over the implementation of the Convention may request that UNESCO ‘extend its good offices to reach a settlement between them’.60 While the Underwater Cultural Heritage Convention contains a detailed provision for the settlement of disputes, this is largely governed by that provided for in the United Nations Convention on the Law of the Sea and designed to address maritime territorial disputes rather than cultural heritage disputes as such.61 Polarised State positions supported by the conventional regimes are therefore seldom addressed through formal dispute settlement provisions. While underpinned by normative structures, such disputes appear to be more usually resolved, or at least addressed, on a diplomatic level.62 The co-operative conventional regimes The World Heritage Convention and the Intangible Cultural Heritage Convention contain little in the way of binding obligations on States Parties, and the normative content pertains to the structuring of the co-operative international regime designed to facilitate the protection of cultural heritage within each State Party.

54 For example, Article 11, 1954 Hague Convention. 55 J.A.R. Nafziger, ‘A Blueprint for Avoiding and Resolving Cultural Heritage Disputes’ (2004) 9 Art Antiquity and Law 3, 8. 56 Nafziger (2004) op. cit., p. 3. 57 See S. von Schorlemer; ‘UNESCO Dispute Settlement’ in Yusuf, op. cit., pp. 73–103. 58 Article 14, Regulations for the 1954 Hague Convention. 59 L. Barker, ‘International Arbitration and Alternative Dispute Resolution in Art and Cultural Heritage Disputes: IBA Conference, Auckland’ (2004) Art Antiquity and Law 418, 419. 60 Article 17(5), 1970 Convention. 61 Article 25, Underwater Cultural Heritage Convention. 62 Barker, op. cit., p. 420.

From five international conventions to an international law of co-operation 405 Without onerous burdens placed on the States Parties, these two conventions have attracted significant international support. The World Heritage Convention is almost universally supported, with 186 States Parties, while the Intangible Cultural Heritage Convention, after a mere five years since its adoption, has attracted 112 States Parties. If success is determined by the number of States entering into the conventional regime, these Conventions would indeed be very successful in international conventional terms. However, the content of these conventions contains few normative provisions, and merely introduces a co-operative regime that States can enter into without taking on any international obligations as such. Indeed, it is questionable whether it was necessary to use the vehicle of the international convention to adopt these co-operative regimes. This form of international co-operation is also evident in the Underwater Cultural Heritage Convention in relation to underwater cultural heritage beyond coastal States’ jurisdiction. Whilst a co-operative regime, the normative content of other parts of the Convention do impose binding obligations on States, and its general regime might be said to resemble that of the 1970 Convention more so than the World Heritage Convention. A principled basis for the protection of cultural heritage The UNESCO cultural heritage conventions were each drafted in its own political climate, addressed different pressing issues, defined the cultural heritage for its own purposes, and structured the regimes with different degrees of normative content. While the conventions may overlap in that more than one might apply to any given situation, they operate as separate instruments. With the exception of the protection of cultural heritage in armed conflict, little customary international law appears to have evolved from, or in parallel, to these conventions. In many cases whether the convention has successfully addressed the pressing threat to the cultural heritage remains questionable. In this light it might be concluded that there is little in the way of commonality between these regimes and no such thing as ‘an international law of cultural heritage’, merely a collection of international instruments. In a strictly normative sense this is probably true. Yet the conventions have raised the protection of cultural heritage on an international plain, highlighted its importance, and spurred on national and international co-operation. The conventions are bound together by the recognition of the cultural heritage as the common concern of humankind.

Cultural heritage as the common concern of humankind Whilst adopted on a piecemeal basis, reacting to specific needs rather than providing a framework within which all cultural heritage might be preserved and managed, the UNESCO cultural heritage conventions do have one common theme. They all contain terms that variously describe the cultural heritage as belonging to or being protected in the interests of all humankind.

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Cultural heritage as the common heritage of humankind The recognition of cultural heritage as having universal importance was first established in the 1954 Hague Convention when it affirmed 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’.63 It introduced into international law the notion that the cultural heritage is of general importance to all humankind, irrespective of where that cultural heritage is situated.64 This recognition established a conceptual basis for subsequent UNESCO conventions.65 The World Heritage Convention is based on the premise that ‘parts of the cultural and natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole’66 and that the destruction or deterioration of the cultural heritage ‘constitutes a harmful impoverishment of the heritage of all the nations of the world’.67 Furthermore, article 6 of the Convention declares that ‘State Parties to this Convention recognise that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate’. Such a notion is evident in many other UNESCO instruments. The 1972 Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage regards the cultural heritage as constituting ‘an essential feature of mankind’s heritage’. Similarly, the 1976 Recommendation Concerning the International Exchange of Cultural Property contains the statement ‘[b]earing in mind that all cultural property forms part of the common heritage of mankind …’. The 1966 Declaration of the Principles of International Cultural Co-operation states that ‘[i]n their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind’. The Underwater Cultural Heritage Convention refers to 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 concerning their common heritage’.68 While these international conventions and agreements contain the term ‘common heritage of mankind’ or something of the like, it is not certain what this really means when contained in an international convention, and what obligations might be imposed upon States Parties in international law. Two possibilities have caused much debate. The first is whether the concept of the common

63 Second recital, 1954 Hague Convention. 64 Merryman (2005) op. cit., p. 11. 65 J. Mulvaney, ‘A Question of Values: Museums and Cultural Property’ in I. McBryde (ed.) Who Owns the Past?, Oxford: Oxford University Press, 1985, p. 89. 66 Sixth recital, World Heritage Convention. 67 Second recital, World Heritage Convention. 68 First recital, Underwater Cultural Heritage Convention.

From five international conventions to an international law of co-operation 407 heritage of mankind as developed in international law, particularly the law of the sea, is applicable, and second, the extent to which this embodies the principle of ‘cultural internationalism’ in contradistinction of cultural ‘nationalism’. The international concept of the common heritage of humankind The concept of the common heritage of humankind has been the cause for much academic debate.69 It emerged in international legal considerations in the context of the law of the sea in the 1960s and 1970s in relation to access to the deep seabed, and was centred on four core principles: (a) non-appropriation of the deep seabed; (b) the establishment of an international regime to manage deep seabed mining; (c) the peaceful use of the area, and (d) the equitable sharing of benefits derived from the deep seabed. The application of these principles, it was hoped, would create a more equitable basis for the sharing of the world’s resources amongst States. These constituting principles were further proposed for application in other emerging international areas, in particular, the moon, outer space, Antarctica, the geostationary orbit, the environment and technology. However, the principles that emerged in the context of the law of the sea and the law of outer space could not neatly be applied to other issues such as technology, and required some reorientation. This gave rise to various interpretations, which was further complicated by the use of some of the constituent principles of the common heritage of humankind in various international regimes and which have been equated with the concept itself. The concept therefore tended to mean different things in different contexts. These international developments took place against the backdrop of the Cold War and the development of the now defunct concept of the New Economic International Order, and so the exact meaning of the core principles was uncertain. It is therefore not surprising that, from its inception, it was not possible to define and determine the legal status of this concept. By the mid1980s the general view regarding the status of the concept was best summed up in the words of Joyner, who declared that ‘[a]s yet the common heritage of mankind is not a principle of international law … it is merely a philosophical notion with potential to emerge and crystallise as a legal norm’.70 The majority of

69 C.C. Joyner, ‘Legal Implications of the Concept of the Common Heritage of Mankind’ (1986) 35 International and Comparative Law Quarterly 199; M.C. Ciciriello, ‘The Principle of the Common Heritage of Mankind and it’s Application in Contemporary International Law: Results of a Research’ (1982) 2 University of Rome, Dept of Public Law 609; G.M. Danilenko, ‘The Concept of the Common Heritage of Mankind in International Law’ (1988) 12 Annals of Air and Space Law 247; S. Gorove, ‘The concept of the common heritage of mankind’ (1970) 9 San Diego Law Review 390; A.C. Kiss, ‘Conserving the common heritage of mankind’ (1990) 59 Revista Juridica University Puerto Rico 773: B. Larschan and B.C. Brennan, ‘The Common Heritage of Mankind Principle in International Law’ (1983) 21 Colombian Journal of Transnational Law 305; M.V. White, ‘The Common Heritage of Mankind: An Assessment’ (1982) 14 Case Western Reserve Journal of International Law 509. 70 Joyner, op. cit., p. 199.

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commentators on international law have regarded the concept of the common heritage of humankind as ‘too vague, confusing, unclear and ill-defined to be useful’.71 This extends to the cultural heritage conventions.72 So, for example, the 1972 World Heritage Convention, which is replete with reference to the natural and cultural heritage as being, in some form, the heritage of humankind, falls short of actually applying a normative concept of the common heritage of humankind.73 Thus the Convention does not vest in humankind, even if represented by the international community of States, any right to compel a State to protect the cultural heritage in its territory. At best, such a right may only rest with States Parties to the Convention.74 Cultural ‘nationalism’ vs ‘internationalism’ While it cannot be said that any international principle or norm of a common heritage of humankind exists, the notion that some forms of cultural heritage have a value which transcends the interest of only one State is evident in many of the cultural heritage conventions. Exactly how this notion is given content in the conventions does, however, differ, and has given rise to another conflict or dichotomy in the way in which the conventions are viewed. That is, as John Henry Merryman has labelled the debate, cultural ‘nationalism’ versus cultural ‘internationalism’.75 Cultural internationalism, according to Merryman, is ‘shorthand for the proposition that everyone has an interest in the preservation and enjoyment of cultural property, wherever it is situated, from whatever cultural or geographic source it derives’.76 This he considers synonymous with the phrase ‘cultural heritage of all mankind’ used in the preamble of the 1954 Hague Convention.77 The history of the development of the protection of cultural heritage during armed conflict certainly does reflect this notion that the cultural heritage in one particular State, under threat from war, ought to be protected for the benefit of humankind. Merryman argues that the 1954 Hague Convention evinces a cultural internationalist approach which recognises that all peoples may have an interest in the cultural heritage found in any one particular State; but contrast this with the 1970

71 K. Baslar, The Concept of the Common Heritage of Mankind in International Law, Leiden: Martinus Nijhoff, 1998, p. 79. 72 See for example A. Monden and G. Wils, ‘Art objects as Common Heritage of Mankind’ (1986) 19 Revue Belge de Droit International 327, 327–38; Blake, op. cit., p. 70. For a contrary view see G. Reichelt, ‘International Protection of Cultural Property’ (1985) 1Uniform Law Review 43, 53; S. von Schorlemer, ‘Legal Changes in the regime of the Protection of Cultural Property in Armed Conflict’ (2004) 9 Art Antiquity and Law 43. 73 Baslar, op. cit., pp. 300–4. 74 R. O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole? (2004) 53 International and Comparative Quarterly 189. 75 J.H. Merryman, ‘Two Ways of Thinking About Cultural Property’ (1986) 80 American Journal of International Law 831. 76 Merryman (2005) op. cit., p. 11. 77 Ibid.

From five international conventions to an international law of co-operation 409 Convention, which he regards as evincing a narrow ‘cultural nationalist’ approach, which restricts the interest in cultural heritage to the State in whose territory it is found.78 At the core of this argument is, on the one hand, that UNESCO Constitution and the 1970 Convention recognises the importance of ‘the interchange of cultural property among nations for scientific, cultural and educational purposes’, and on the other, that the conventional structure reserves the determination of which cultural heritage will be subject to export restriction to the State in which it is found. That the territorial State can determine what cultural heritage is subject to the 1970 Convention does reflect the recognition that ‘cultural objects which reveal the specific national features of original civilisations should belong to the people who created them. If they are no longer accessible to those who created them, provision should be taken for their restitution or return to the State(s) of origin’.79 As such, the Convention plays an important part in the protection and retention of cultural heritage which has a distinct ‘national’ character, possibly still used in cultural practices, and which, at the very least, ensures that the territorial State has a representative collection of objects that reflect the history and culture.80 More problematic though is the cultural heritage, usually archaeological heritage, which is found within the territorial State but is not necessarily linked with the incumbent culture.81 This ability of the territorial State to declare any, or all, that it defines as cultural heritage as subject to the 1970 Convention, it is argued, amounts to unnecessary ‘hoarding’ of cultural heritage and ‘retentive nationalism’, which dominates the international law relating to cultural heritage.82 The UN General Assembly and UNESCO, the international organs most likely to advocate cultural internationalism, are dominated, it is argued, by States dedicated to retention and repatriation, which undermines the notion that cultural heritage belongs to all humankind, especially by preventing the free exchange of cultural heritage amongst States, including exchange via a free market system.83 Furthermore, it is argued that whilst the 1954 Hague Convention and the 1970 Convention may overlap and apply in parallel, possibly to the same cultural heritage, such as illicitly excavated and exported archaeological objects from an occupied territory, the conventions are incompatible to the extent that the general principles underlying each regime are in contradiction.84

78 J.H. Merryman, ‘International Art Law: From Cultural Nationalism to a Common Cultural Heritage’ (1983) 15 New York University Journal of International Law and Politics 757, 759. 79 Strati, op. cit., p. 8. 80 R.K. Paterson and D.S. Karjala, ‘Looking Beyond Intellectual Property in Resolving Protection of the Intangible Cultural Heritage of Indigenous Peoples’ (2003) Cardozo Journal of International and Comparative Law 633, 653. 81 Merryman (2005) op. cit., p. 31. 82 Ibid., p. 11. 83 Ibid., pp. 21–6. See also J.A.R. Nafziger, ‘An Anthro-Apology for Managing the International Flow of Cultural Property’ (1981) 4 Houston Journal of International Law 189, 193. 84 For a response to Merryman’s argument, see L.V. Prott, ‘The International Movement of Cultural Objects’ (2005) 12 International Journal of Cultural Property 225.

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This distinction is, however, overemphasised. All the UNESCO Conventions essentially leave it to the territorial State to determine what will constitute the cultural heritage for the purposes of each Convention; including the 1954 Hague Convention. Only the territorial States (or in some circumstances the occupying power of an occupied territory), can determine what sites will be eligible for Enhanced Protection, for example. As such, O’Keefe argues that the 1954 Hague Convention, rather than embodying a common heritage, effectively embodies a collective heritage. Since the definition in article 1 provides that ‘cultural property’ means ‘of great importance to the cultural heritage of every people’, O’Keefe concludes that this is a summation of every State’s cultural property; ‘the full gamut of each high contracting party’s national cultural heritage, as defined by that party itself ’.85 This does not, however, deny that humankind has some form of interest in this collective cultural heritage since it is this, the second recital goes on to explain, which makes up the ‘common heritage of mankind’. As such, the 1954 Hague Convention is internationalist in this latter sense though based upon a national implementation and determination as to what the content of the cultural property for the purpose of that convention will be. Similarly, while the territorial State has the power to determine what constitutes ‘cultural property’ for the purposes of the 1970 Convention, this is restricted to the exhaustive definition contained in the Convention itself. The same applies to both the Underwater Cultural Heritage Convention and the UNIDROIT Convention. The ability of the territorial State to determine, for the purposes of the convention, what cultural heritage is actually covered, is not limited to the 1970 Convention or 1954 Hague Convention, but underpins the very structure of the World Heritage Convention. To a large extent it also underpins the Intangible Cultural Heritage Convention. The commendation of the retention of the cultural heritage provided for in the 1970 Convention is not unique. The 1954 Hague Convention, ‘considered to be internationalist’ in introducing the notion of a common heritage, contains retentive policy measures.86 The 1956 UNESCO Recommendation and the 1968 Recommendation both endorse the policy of retaining archaeological heritage in the State in which it is excavated, whilst recognising its importance to humankind, as does the UNIDROIT Convention. As such, whilst Merryman advocates the international art and antiquities market as the appropriate mechanism by which cultural heritage ought to be exchanged for the benefit of humankind, it seems that, if a precautionary approach was taken to the protection of cultural heritage, the territorial State, both practically and in terms of the likely cultural connection between the cultural heritage and the State, is best placed to determine how and when the cultural heritage is to be exchanged. While it is therefore undeniable that the conventions have vested in the territorial State the ability to give cultural heritage a more definitive content for the

85 R. O’Keefe, ‘The Meaning of Cultural Property under the 1954 Hague Convention’ (1999) 46 Netherlands International Law Review 55. 86 For example, article 5, 1954 Hague Convention.

From five international conventions to an international law of co-operation 411 purposes of each convention, such as the determination of which properties within its territory ought to be listed on the World Heritage List, or even which intangible cultural heritage practiced in its territory ought to be considered for listing on the Intangible Cultural Heritage List; the conventions also recognise in some sense the interests of humankind as a whole. A dual interest is therefore recognisable in this cultural heritage, the primary interest lying with the territorial State, with the inherent responsibility of that State to preserve the cultural heritage for those with a secondary interest. It is thus inherent in this scheme that the State of origin acts, in some way, akin to a trustee on behalf of a wider beneficiary, humankind. This idea of trusteeship is, for example, evident in the 1972 UNESCO Recommendation Concerning the Protection at National Level, of the Cultural and Natural Heritage which imposes on each State ‘an obligation to safeguard this part of mankind’s heritage and to ensure that it is handed down to future generations’. It is similarly evident in the 1978 UNESCO Recommendation for the Protection of Movable Property which declares that: ‘movable cultural property representing the different cultures forms part of the common heritage and that every State is therefore responsible to the international community as a whole for its safeguarding’. Reference to trusteeship in relation to cultural heritage is pervasive in academic literature on cultural heritage.87 King states that ‘[t]here is no way, in this contemporary, interconnected world, that we can recognise the absolute power, or absolute sovereignty, of a state over its cultural patrimony.’88 In some sense this has already occurred. The World Heritage Convention underpins a notion of a ‘world heritage’, a common heritage of humankind, but the regime itself is underpinned by recognition of State sovereignty and respect for private property rights. Nevertheless, at the same time the regime incorporates a requirement of co-operation between States, and imposes on State sovereignty, at least in one important respect. The World Heritage Committee’s ability to list a world heritage site on the Heritage in Danger list, without needing to obtain the consent of the State in whose territory the site is situated, already suggests power beyond that of the territorial State. Furthermore, the role of NGOs in the conventional structure suggests a recognition of nongovernmental and broader non-State based civil society interest in the cultural heritage which has ‘contributed to a firming up of a notion of a world heritage’.89 So too is the use of the UNESCO List of Masterpieces of Oral and Intangible Heritage of Humanity as the basis of the Intangible Cultural Heritage List given

87 See for example A. Shestack, ‘The Museum and Cultural Property: The Transformation of Institutional Ethics’ in P.M. Messenger (ed.), The Ethics of Collecting Cultural Property: Whose Culture? Whose Property?, Albuquerque: University of New Mexico Press, 1989, p. 114; S. Williams, The International and National Protection of Movable Cultural Property. A Comparative Study, Dobbs Ferry, NY: Oceana Publications, 1978, p. 53. 88 J.L. King, ‘Cultural Property and National Sovereignty’ in Messenger, op. cit., p. 199; Baslar, op. cit., pp. 14–20. 89 See Francioni, op. cit., p. 6.

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that a number of States with intangible heritage on the Masterpieces List are not a party to the Convention. The notion of stewardship, or trusteeship, is however, problematic in international law as it is not clear that an entity such as ‘humankind’, or the ‘international community’ exists in a way that is capable of exerting rights. The notion of humankind as the recipient of rights and duties can be traced back to the dawn of civilisation and is mentioned in numerous religious and philosophical texts. The use of the term in contemporary international law is associated with the increasing influence of natural law theory and the development of international humanitarian law and is used in numerous international treaties. Its content is, however, unclear. It has been interpreted in a positive legal framework to mean ‘all States’, while in a natural law context it may pertain to all human beings, including future generations.90 Recognition of the latter entails the acknowledgement that humankind is capable of having rights and duties in international law. Referring to the rights of future generations, as a component of mankind, Weiss states that the enforcement of these rights ‘is appropriately done by a guardian or representative of future generations as a group, not of future individuals, who are of necessity indeterminate. The fact that the holder of the right lacks standing to bring grievances forward and hence must depend upon the decision of the representative to do so does not affect the existence of the right or the obligation associated with it’.91 Weiss further posits that ‘since States are continuing entities, they represent past, present and future generations’92 and as such, are required to act as trustee for these generations of humankind. Recognition of this will entail States acting in the interest of all humankind, and not simply in its own interest. As attractive as this might sound, it is difficult to accept that this is indeed an international law principle capable of application in the context of the protection of cultural heritage. As such, the ‘common heritage of humankind’ is, as Francioni explains, ‘to be understood not in the sense of establishing the international community as a titleholder, but rather in the sense of a common international commitment to its preservation and protection’.93 All five UNESCO conventions contain terms that variously describe the cultural heritage as belonging to or being protected in the interests of all humankind, and whilst reflecting a specific international law principle, does not mean they have no value. Indeed, the fact that five conventions have all been adopted to provide for the protection of cultural heritage, which recognise, at least in an ethical sense the interests of humanity and the concept of States acting akin to a trustee, serves to acknowledge that this is the common concern of humankind.

90 H.C. Roodt, Legal Aspects of the Protection of Cultural Heritage, Unpublished, LLD Thesis, Bloemfontein: University of the Free State, 2000, p. 123. 91 E.B. Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, Dobbs Ferry: Transnational Publishers, 1989, p. 97. 92 Ibid., p. 48. 93 F. Francioni, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’ in Yusuf, op. cit., p. 230.

From five international conventions to an international law of co-operation 413 This requires that States co-operate to address the protection of cultural heritage. To this end, UNESCO is best placed to act as a central co-ordinator of State action.

An institutional approach The international law concept of the common heritage of humankind had envisaged the creation of an international administrative regime, separate from States, which would represent humankind.94 While the concept has failed to achieve normative status, its partial recognition in spaces beyond State jurisdiction, particularly the high seas and the moon, has required the creation of international administrative bodies, though made up of representatives of States.95 In the field of cultural heritage, UNESCO provides the institutional vehicle through which the cultural heritage of humankind can be protected. In 1982, the World Conference on Cultural Policies concluded that ‘in a world torn by dissections which imperil the cultural values of the different civilisations, the member States and the Secretariat of [UNESCO] must increase their efforts to preserve such values and take more intensive action to further the development of mankind. The establishment of a lasting peace is essential to the very existence of human culture’.96 This call for action on the part of UNESCO reflects the extent to which it fulfils a central role in facilitating the protection of the world’s cultural heritage. UNESCO’s mandate In 1945, Brazil proposed that the UN Charter contain a clause recognising culture as the common heritage of humankind, and to create an international organ to maintain co-operation in the preservation of the cultural heritage. Although this proposal was not accepted, the theory behind it became the basis for the formation of UNESCO. The purpose of the organisation 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

94 Baslar, op. cit., pp. 94–6; Weiss, op. cit., p. 113, who proposed the establishment of a Planetary Rights Commission which would have had global jurisdiction to receive complaints regarding the non-fulfilment of right to which humankind would be vested. 95 The International Seabed Authority was established under Part XI of UNCLOS to administer the deep seabed as the common heritage of mankind (article 136). The Moon Treaty provides for the establishment of an international regime to govern the exploitation of the natural resources of the moon. Article 11, 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. 96 As quoted in J. Toman, The Protection of Cultural Property in the Event of Armed Conflict, Aldershot: Dartmouth, 1996, p. 259.

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From five international conventions to an international law of co-operation justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.97

To realise this purpose, UNESCO is empowered with three important functions.98 The first is a co-operative and collaborative function such that the organisation will function as a medium for States to address issues that are the common concern of humankind. Whilst not a global administrator as such, essentially being a conglomerate of States Parties, it nevertheless is capable of exerting some independence in the realm of cultural heritage, and together with States, collectively construct appropriate co-operative regimes. The second important function, which follows on from its co-operative function, is to ‘recommend such international agreements as may be necessary’ for UNESCO to achieve its objective.99 The five cultural heritage conventions and numerous recommendations and declarations adopted under the auspices of UNESCO reflect this function. The third important function is for UNESCO to achieve its objective through education and advancing knowledge and understanding. This includes ‘assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science’.100 UNESCO, as an inter-governmental organisation, reflects the view of its member States, and cannot, therefore be totally independent. However, it is the body responsible for the co-ordination of efforts to protect the world’s cultural heritage, and its mandate has given it the ability to act in a proactive manner, by formulating recommendations, offering technical services, co-ordinating preservation initiatives, giving advice, and acting as a mediator in conflicts between member States.101 This proactive nature is, however, limited to that allowed by UNESCO’s programme and budget approved by the member States. Furthermore, ‘UNESCO has no power to police or to sanction. Its authority is purely moral’.102 Nevertheless, it has been able to exert this moral authority to save cultural heritage. It does so through a number of mechanisms; by persuasion and the exertion of political pressure on governments, particularly by exposure in international fora; as well as through the promise of technical, administrative and sometimes financial assistance. Through such efforts, UNESCO has been able to safeguard cultural heritage on a number of occasions, such as the prevention of the

97 Article 1, UNESCO Constitution. 98 J. Musitelli, ‘World Heritage, Between Universalism and Globalization’ (2002) (11) International Journal of Cultural Property 323, 324. 99 Articles 2(a) and (c), UNESCO Constitution. 100 Article 2(c), UNESCO Constitution. 101 See for example the measures proposed by UNESCO in relation to the 1974 dispute between Israel and Jordan regarding Israel’s archaeological excavation in the occupied territories of Jerusalem. J.A.R. Nafziger ‘UNESCO-Centred Management of International Conflict Over Cultural Property’ (1976) 27 The Hastings Law Journal 1051, 1062. 102 Musitelli, op. cit., p. 325.

From five international conventions to an international law of co-operation 415 establishment of a bauxite treatment factory near the archaeological site in Delphi, Greece; the prevention of the flooding of rock art sites in the Coa valley in Portugal during the construction of a dam; the prevention of building a highway near the pyramids of Giza in Egypt; and the prevention of the construction of a cable car system in Machu Picchu in Peru.103 These roles played by UNESCO are, however, not only regulated by its Constitution, but by the powers and roles specifically provided for in each of the cultural heritage Conventions adopted under its auspices. Its relation with each conventional regime is unique. The relationship between UNESCO and the UNESCO cultural heritage conventions International Conventions may be sponsored and adopted by UNESCO’s General Conference pursuant to its Constitution.104 However, once a convention comes into force, it achieves a life of its own, and binds only those States which are party to it. This, however, can be problematic, since the negotiation of a convention sponsored by UNESCO does not require that all parties negotiating the convention be States Parties to UNESCO. The organisation simply acts as a host to the parties negotiating the convention. States may therefore become a party to a convention whilst not being a party to UNESCO. As such, the General Assembly of the States Parties to a Convention cannot bind third States. Since UNESCO itself is simply created by a multi-lateral convention, the States Parties to that convention, through its General Conference, Executive Board or Secretariat, cannot bind States beyond the particular remit of its Constitution. Once a convention is established, it effectively becomes independent of its parent, UNESCO. Where the convention then creates any specific relationship between UNESCO and any particular body created by the Convention, difficulties in competencies arise. This has been the case when States such as the US and UK have withdrawn their membership of UNESCO for certain periods,105 affecting their ability to interact with the institutions created by the conventions to which they are a party and UNESCO, which, in all cases, has effectively ‘hosted’ those institutions. The first administrative body provided for in a UNESCO cultural heritage convention was the World Heritage Committee established by the World Heritage Convention. This, and the secretariat established to assist the World Heritage Committee (World Heritage Centre), exerts considerable power in the implementation of the Convention. The secretariat is unique as no other cultural heritage convention provides for the establishment of such a body and as a

103 Ibid. 104 A.A. Yusuf, ‘UNESCO Practices and Procedures for the Elaboration of Standard-setting Instruments’ in Yusuf, op. cit., pp. 31–49. 105 Schrijver, op. cit., pp. 379–82.

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consequence its role is extensive, but ill-defined, and, together with the function of the Committee, has led to considerable tension between the Secretariat, the World Heritage Committee, the General Assembly of States Parties and other organs of UNESCO.106 In resolving this conflict, it was recognised that while each convention, and the institutional implementing bodies it creates, is autonomous, close co-operation is required in order to ensure the implementation of all conventions to cultural heritage in a co-ordinated, non-contradictory manner. These other conventional bodies consist, in the main, of Committees designed to oversee the implementation of the relevant convention. While the 1954 Hague Convention did not provide for a Committee as such, relying on other co-operative mechanisms, the 1999 Second Protocol established the Committee for the Protection of Cultural Property in the Event of Armed Conflict.107 Its functions include: the development of Guidelines for the implementation of the Protocol, monitoring its implementation, regulating the List of Cultural Property under Enhanced Protection, and determining the appropriate use of the Fund. UNESCO also acts as the secretariat for this Committee.108 A similar committee, and secretariat, was established in the Intangible Cultural Heritage Convention.109 The Underwater Cultural Heritage Convention provides for a limited administrative body, the Scientific and Technical Advisory Body, which merely assists the Meeting of States Parties in questions of a scientific or technical nature regarding the implementation of the Rules of the Annex.110 The secretariat for the Underwater Cultural Heritage Convention indirectly is UNESCO, the article simply providing that the Director-General will be responsible in this regard.111 The 1970 Convention did not provide for the creation of any committee or body to give effect to the conventional provisions, since it was expected that each State would be capable of doing so. However, the UNESCO General Conference did, in 1978, establish the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Cases of Illicit Appropriation. Considered to be the competent body of the 1970 Convention, the Committee’s functions include ‘seeking ways and means of facilitating bilateral negotiations for the return or restitution of cultural heritage and promoting exchanges of cultural property’.112 The retrospective creation of Committees for the first two UNESCO cultural heritage conventions evinces a recognition of the need for co-operative bodies to assist in the implementation of the conventions, rather than relying merely on the States Parties.

106 See discussion in Chapter 5. 107 Article 24, 1999 Second Protocol. Such a committee was originally proposed in 1915, called the ‘Golden Cross’, to provide a neutral institution to govern the protection regime. A similar proposal was made in 1936 in the report of the International Museums Office. 108 Article 28, 1999 Second Protocol. 109 Articles 5 and 10, Intangible Cultural Heritage Convention. 110 Article 23, Underwater Cultural Heritage Convention. 111 Article 24, Underwater Cultural Heritage Convention. 112 von Schorlemer (2007) op. cit., p. 101.

From five international conventions to an international law of co-operation 417 These bodies, while self standing, fall within the broad influence of UNESCO, and together can exert some power in proactively providing for the protection of cultural heritage and, at the same time, provide a mechanism through which States can co-operate in an integrated and global protective regime. Whilst an entity created by convention and subject to the will of the States Parties, UNESCO does exert proactive functions of an independent nature. The conventional regimes also provide for other mechanisms through which the States Parties interact with UNESCO. The 1954 Hague Convention, for example, provides that: The High Contracting Parties may call upon [UNESCO] for technical assistance in organizing the protection of their cultural property, or in connexion with any other problem arising out of the application of the present Convention or the Regulations for its execution. The Organization shall accord such assistance within the limits fixed by its programme and by its resources.113 Furthermore, UNESCO is, by article 23(2), authorised to make, on its own initiative, proposals on this matter to the States Parties. Though modest, Toman considers it ‘one of the fundamental provisions on which the entire edifice for the protection of cultural property is built’.114 The ability, under article 23 of the 1954 Hague Convention, to seek assistance from UNESCO was invoked, for example, by Lebanon when Israel invaded and occupied the southern part of the State. The Lebanese authorities requested that UNESCO send a representative to the archaeological site of Tyre in order to ensure its protection by monitoring activities on the site. This was done, and later an expert was dispatched by UNESCO to place the Convention’s distinctive emblem around the site.115 A similar proactive duty is vested in UNESCO in relation to conflict not of an international character, specifically empowering UNESCO to offer its services to the opposing belligerents in order to achieve an implementation of the Convention in the armed conflict.116 The 1999 Second Protocol substantially replicates these powers.117 Similarly, the 1970 Convention allows State Parties to call on UNESCO for technical assistance, particularly as regards information and education; consultation and expert advice; and co-ordination and ‘good offices’. The proactive powers of UNESCO were given further detail in the 1970 Convention, providing that, on its own initiative, UNESCO could conduct research and publish studies on matters relevant to the illicit movement of cultural property as well as making

113 114 115 116 117

Article 23, 1954 Hague Convention. Toman, op. cit., p. 255. O’Keefe (2006) op. cit., pp. 137 and 172–88. Article 19(3), 1954 Hague Convention. Articles 22(7) and 33, 1999 Second Protocol.

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proposals to States Parties for implementation of the Convention.118 The Underwater Cultural Heritage Convention, on the other hand, defers to the cooperation between States in the provision of mechanisms that will aid the implementation of the Convention rather than looking to UNESCO for assistance. The World Heritage Convention and the Intangible Heritage Convention, as essentially co-operative international regimes, differ from the other Conventions in that the co-operative function, and UNESCO’s central place as home to the Committee and secretariat, are central to the structure of the Convention and addressed in most of the provisions. It is therefore not surprising that in these contexts UNESCO has been particularly proactive, especially through the World Heritage Committee and World Heritage Centre. The extent of the activities undertaken in response to the listing of Angkor on the World Heritage List, for example, is illustrative of the proactive nature of the World Heritage Committee and its secretariat.119 The role of UNESCO in the normative conventional regimes is therefore rather modest, limited to requests for technical assistance. When adopting the 1954 Hague Convention, this had been intentional as the States Parties wanted to minimise the connection between the resulting regime and UNESCO so as to encourage States not party to UNESCO to become a party to the Convention.120 The adoption of the co-operative conventional regime evident in the World Heritage Convention naturally required a very different approach, and linked UNESCO intimately with the conventional regime. The two conventions that have followed in its wake, the Underwater Cultural Heritage Convention and the Intangible Heritage Convention have essentially followed the 1954 Hague Convention and the World Heritage Convention structure respectively. While the Underwater Cultural Heritage Convention is not linked to UNESCO in many ways, the Intangible Cultural Heritage Convention is intimately linked with UNESCO, including through the provision for the establishment of a Fund. The establishment of the World Heritage Fund, and the promise of financial assistance, rather than merely technical assistance from UNESCO, has driven that Convention’s success. This model has now also been applied, retrospectively in a sense, to the 1954 Hague Convention with the establishment of the Fund for the Protection of Cultural Property in the Event of Armed Conflict in the 1999 Second Protocol.121 Not all such structures, however, have been successful. The establishment of a Fund, at the recommendation of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Cases of Illicit Appropriation,

118 Article 17, 1970 Convention. 119 T. Winter, ‘Post-conflict Heritage and Tourism in Cambodia: The Burden of Angkor’ (2008) 14 International Journal of Heritage Studies 524, 527. 120 O’Keefe (2006) op. cit., p. 172. 121 Article 29, 1999 Second Protocol.

From five international conventions to an international law of co-operation 419 has been a complete failure, with only one State, Greece, making a modest contribution.122 It is clear then that the UNESCO cultural heritage conventions, whilst self standing, are intimately linked with UNESCO, and provide for UNESCO to act co-operatively with States and NGOs, and proactively, in protecting the cultural heritage. An important part of this proactive, and co-operative function, relates to education. Education The third important function mandated to UNESCO to achieve its objective is, through education and advancing knowledge and understanding, to assure ‘the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science’.123 Respect for the world’s cultural heritage, at international and national level, can only be achieved if its value is recognised by States and their peoples. Whilst the education of specialists in the field of cultural heritage management, conservation and sustainable tourism are essential to the continued protection of cultural heritage124, the key to protection lies in the education of all peoples as to the value of each culture’s heritage and of the interconnectivity of that heritage with all the peoples of the world. The provision of educational and information programmes raises public awareness, understanding and appreciation, and the importance of the heritage within the life of a community.125 In the context of the underwater cultural heritage, the importance of education is expressed in the preamble in which States Parties recognise ‘the importance of research, information and education to the protection and preservation of underwater cultural heritage’. The provision of information and education is usually set out to achieve a particular objective: such as ‘to stimulate and develop respect for the cultural heritage of all States’126, ‘spreading knowledge of the provisions of this [1970] Convention’127, ‘to create and develop in the public mind a realisation of the value of cultural property and the threat to the cultural heritage created by theft, clandestine excavations and illicit exports’,128 ‘to strengthen appreciation and respect

122 P.J. O’Keefe, Commentary on the 1970 UNESCO Conventions, 2nd edn, Builth Wells: Institute of Art and Law, 2007, p. 88. 123 Article 2(c), UNESCO Constitution. 124 See article 22(c), World Heritage Convention for international assistance in the training of specialist in the World Heritage Convention. 125 For a discussion of the educational programmes established to promote the aims of the World Heritage Convention, see V. Vujicic-Lugassy and M. Richon, ‘Educational Programmes’ in Francioni, op. cit., pp. 325–34. 126 Article 5(f), 1970 Convention. 127 Article 5(f), 1970 Convention. 128 Article 10(b), 1970 Convention.

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by their peoples of the cultural and natural heritage’129, and ‘to strengthen appreciation and respect for cultural property by their entire population’130. With these aims in mind, imposing an international obligation on States Parties requires consideration of the resources of each State. To impose an obligation to actually achieve an educational or information programme, let alone to actually require that the aims of that programme be achieved, would be both impracticable to achieve and impossible to measure. As such, while an obligation is usually imposed on States Parties, that obligation is qualified in the sense that States Parties ‘shall endeavour’ to implement an education programme. This formulation appears, for example, in article 27 of the World Heritage Convention, which requires that States Parties ‘shall endeavour by all appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect by their peoples of the cultural and natural heritage’.131 This requires that States, at the very least, actually undertake to implement some educational or informational programmes, whilst leaving the extent of this to each State. Recognising that the implementation of such programmes are beyond the resources of many developing States, the provision of assistance from both UNESCO and other States is often directed at educational programmes. The primacy of education in the protection of cultural heritage is specifically recognised in the Intangible Cultural Heritage Convention. A core provision of the Convention is the requirement that each State Party shall endeavour, by all appropriate means, to: a

ensure recognition of, respect for, and enhancement of the intangible cultural heritage in society, in particular through: (i)

educational, awareness-raising and information programmes, aimed at the general public, in particular young people; (ii) specific educational and training programmes within the communities and groups concerned; (iii) capacity-building activities for the safeguarding of the intangible cultural heritage, in particular management and scientific research; and (iv) non-formal means of transmitting knowledge; b c

keep the public informed of the dangers threatening such heritage, and of the activities carried out in pursuance of this Convention; promote education for the protection of natural spaces and places of memory whose existence is necessary for expressing the intangible cultural heritage.

129 Article 27, World Heritage Convention. 130 Article 30, 1999 Second Protocol. 131 The same formulation is used in article 10(b), 1970 Convention and article 30, 1999 Second Protocol.

From five international conventions to an international law of co-operation 421 This emphasis on education and the importance of achieving the protection of the cultural heritage through education is particularly marked in this case since the imposition of binding norms to protect the intangible is unlikely to be effective. This has also been increasingly recognised in the context of the other cultural heritage conventions. In light of the perceived failure of the normative provisions of the 1970 Convention to stem the illicit trade in cultural heritage, a number of commentators have baulked at the imposition of draconian laws which might push demand side transactions underground into a black market, and urged greater educational initiatives directed at the demand side of the art and antiquities market in order to change behaviour.132 That such education is effective might be reflected in the growing number of collecting institutions, such as museums and universities, adopting more stringent policies against acquiring unprovenanced objects, and activities by organisations such as the International Council of Museums. Principle of co-operation The recognition of the protection of cultural heritage as the common concern of humanity and the creation of UNESCO to give effect to this concern is embodied in the international obligation to co-operate to ensure the protection of the cultural heritage in all its manifestations. The obligation to co-operate is first, and foremost, contained within the constitution of UNESCO. Indeed, UNESCO is the very embodiment of an international co-operative regime. From this regime, and through co-operation, the UNESCO cultural heritage conventions were adopted. And within these conventions, the principle of co-operation is further clarified. The co-operation necessary to effectively implement any of the UNESCO cultural heritage conventions requires co-operation at a number of levels and between various entities, not just States. This may be illustrated in the 1970 Convention. The Convention is underpinned by a multi-level co-operative regime which recognises that without co-operation, the illicit trade in cultural heritage cannot be addressed. Not only does the preamble note that ‘the protection of cultural heritage can be effective only if organized both nationally and internationally among States working in close co-operation’, but States Parties to the convention, by becoming a party, accept that ‘international co-operation constitutes one of the most efficient means of protecting each country’s cultural property’.133 This co-operation between States in entering into the Convention allows for the imposition of further duties of co-operation with, and between other entities. To give this co-operative regime functionality, the Convention provides that States Parties

132 C. Renfrew, Loot, Legitimacy and Ownership, London: Duckworth, 2000, p. 44; C. Alder and K. Polk, ‘Stopping This Awful Business: The Illicit Traffic in Antiquities Examined as a Criminal Market’ (2002) 7 Art Antiquity and Law 35, 46–9; P.J. O’Keefe, Trade in Antiquities: Reducing Destruction and Theft, London: Archetype Publications, 1997, pp. 89–95. 133 Article 2(1), 1970 Convention.

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must ensure that their operative authorities, or functional arms, co-operate. For example, article 13(b) requires that States Parties ensure ‘that their competent services co-operate in facilitating the earliest possible restitution of illicitly exported cultural property to its rightful owner’. The need for co-operation in addressing the illicit trade in cultural heritage extends beyond the mere State to State co-operative regime, and involves UNESCO taking proactive measures in some areas, such as in conducting research and publishing studies related to the illicit trade. To this end, the convention also provides for co-operation between UNESCO and any competent non-governmental organisation.134 The role of non-governmental organisations in the co-operative regime is important since it allows for the determination of certain issues on a more objective basis; that is, without having to take into account the various concerns that usually accompany State action. It also recognises the interests of humanity in a non-State form. The Second Protocol to the 1954 Hague Convention, for example, specifically allows for the attendance, by invitation, of representatives of the International Committee of the Blue Shield, the International Centre for the Study of the Preservation and Restoration of Cultural Property, and of the International Committee of the Red Cross. While the involvement of the nongovernmental organisations in the 1970 Convention and Second Protocol are not mandatory, the World Heritage Convention requires that the World Heritage Committee ‘shall’ co-operate with ‘international and national governmental and non-governmental organisations having objectives similar to those of this Convention’, such as the International Centre for the Study of the Preservation and Restoration of Cultural Property, the International Council of Monuments and Sites and the International Union for Conservation of Nature and Natural Resources. This role of NGOs in the sphere of world heritage is unique.135 Given the relationship between the UNESCO conventional regimes and UNESCO, not surprisingly a duty is imposed for States to co-operate with UNESCO on various levels.136 The international obligation to co-operate between States Parties to the conventions is mandatory, best reflected in the simple clarity of the Underwater Cultural Heritage Convention. Article 2(2) provides that ‘States Parties shall co-operate in the protection of underwater cultural heritage’. Throughout this convention, the duty to co-operate is set in mandatory form. Article 19(1) for example, provides that ‘States Parties shall co-operate and assist each other in the protection and management of underwater cultural heritage under this Convention, including, where practicable, collaborating in the investigation, excavation, documentation, conservation, study and presentation of such heritage’.137

134 Article 17(3), 1970 Convention. 135 A.F. Vrdoljak, ‘The Secretariat and Support of the World Heritage Committee’ in Francioni, op. cit., p. 245. 136 For example, article 27(2), 1999 Second Protocol. 137 See also article 17(3), 21, Underwater Cultural Heritage Convention.

From five international conventions to an international law of co-operation 423 While these regimes impose on States Parties the duty to co-operate, the World Heritage Convention and Intangible Cultural Heritage Convention are embodiments of State co-operation. Indeed, co-operation is not merely a necessary mechanism to achieve some other aim, such as the eradication of the illicit trade in cultural heritage, but the very object of the Convention. The Intangible Cultural Heritage Convention, for example, includes, as one of its four purposes, ‘to provide for international co-operation and assistance’.138

The future of the international law of co-operation The normatively constructed UNESCO cultural heritage conventions are important within each of their spheres of application, not only in providing a normative basis for State action, but in the very structuring of co-operative regimes that provide for such normative action. The collective normative provisions are, however, undermined by a number of problems; limited State ratification in some cases, divergent interpretation of the conventional norms, inadequate State implementation and difficulties in international enforcement.139 While a broad multi-lateral approach such as the 1954 Hague Convention might be difficult to implement, a more specific and targeted approach with stringent normative content can be successful, as is evident in States’ reaction to UN Resolution 1483 calling for the prohibition of the trade in illicit Iraqi cultural heritage. Such reliance on normative structures is, however, increasingly the exception rather than the norm. The more recent UNESCO cultural heritage conventions have evinced a preference for the use of co-operative regimes rather than strict normative provisions, and reflects a much broader perception of how States ought to address issues that are the common concern of humankind. In other areas of competency, such as bioethics, UNESCO has refrained from adopting binding normative conventions and preferred ‘a gradual and prudent’ approach that makes use of recommendations and declarations that advance a common solution to a common problem without setting it in a concrete form incapable of change and evolutionary development.140 In areas such as the protection of cultural heritage, UNESCO has indicated that, rather than increasing the number of normative conventions, effort will be committed to the implementation of the existing normative instruments and on increasing the ratification of those already adopted in order to ensure their widest possible application.141 Recent efforts in this regard have paid dividends, with the UK, for example, becoming a party to the 1954 Hague Convention and the 1970 Convention.

138 Article 1(d), Intangible Cultural Heritage Convention. See also article 19. 139 J.A.R Nafziger, ‘The Principles of Co-operation in the Mutual Protection and Transfer of Cultural Material’ (2007) 8 Chicago Journal of International Law 147, 149. 140 K. Matsuura, Foreword to A.A. Yusuf (ed.), Standard-setting in UNESCO: Normative Action in Education, Science and Culture, Leiden: Martinus Nijhoff and UNESCO Publishing, 2007, p. 13. 141 Ibid.

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The activities of UNESCO in the field of the protection of cultural heritage is underpinned by the principle of co-operation exemplified, in a broad sense, in the five UNESCO cultural heritage conventions. From this conventional co-operative basis, the protection of cultural heritage has extended from mere objects threatened in time of war to the intangible cultural heritage; it has codified customary international law and contributed to its development; it has engaged civil society and non-governmental organisation in the protective regime; it has fostered education and increased the diffusion of knowledge about our shared cultural heritage; it has extended protection beyond territorial boundaries and has set the framework and future agenda for the protection of our shared world heritage.

Appendix I Table of State Parties

1954 1st Hague Prot Afghanistan Albania Algeria Andorra Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahamas Bahrain Bangladesh Barbados Belarus Belgium Belize Benin Bhutan Bolivia Bosnia and Herzegovina Botswana Brazil Brunei Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cape Verde Central African Republic Chad

X

2nd Prot

X

1970 1972 Illicit WHC

1995 2001 UNIDROIT UCH

2003 ICH

X X X

X

X X X

X

X X X X X

X

X X X X X X

X X

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X X (Continued)

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Chile China Colombia Comoros Congo Cook Islands Costa Rica Côte d’Ivoire Croatia Cuba Cyprus Czech Republic Democratic People’s Republic of Korea Democratic Republic of the Congo Denmark Djibouti Dominica Dominican Republic East Timor Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia Georgia Germany Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Holy See Honduras Hungary Iceland India Indonesia Iran (Islamic Republic of) Iraq

1954 1st Hague Prot

2nd Prot

X X X

X X X

X

X X X X X X

X

X

X X X X

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1970 1972 Illicit WHC X X

X X

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X X X X X X X X X X X X

1995 2001 UNIDROIT UCH

2003 ICH

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Appendix I 427 1954 1st Hague Prot Ireland Israel Italy Jamaica Japan Jordan Kazakhstan Kenya Kiribati Korea, Democratic People’s Republic of Korea, Republic of Kuwait Kyrgyzstan Lao People’s Democratic Republic Latvia Lebanon Lesotho Liberia Libyan Arab Jamahiriya Liechtenstein Lithuania Luxembourg Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius Mexico Micronesia (Federated States of ) Moldova, Republic of Monaco Mongolia Montenegro Morocco Mozambique Myanmar Namibia Nauru Nepal Netherlands New Zealand Nicaragua Niger

X X

X X

X X X

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2nd Prot

1970 1972 Illicit WHC

X X

X X

X X X X X X X X X

1995 2001 UNIDROIT UCH

2003 ICH

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X X X (Continued)

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Nigeria Niue Norway Oman Pakistan Palau Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Romania Russian Federation Rwanda Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Samoa San Marino Sao Tome and Principe Saudi Arabia Senegal Serbia Seychelles Sierra Leone Singapore Slovakia Slovenia Solomon Islands Somalia South Africa Spain Sri Lanka Sudan Suriname Swaziland Sweden Switzerland Syrian Arab Republic Taiwan Tajikistan Tanzania, United Republic of Thailand The Former Yugoslav Republic of Macedonia

1954 1st Hague Prot

2nd Prot

1970 1972 Illicit WHC

1995 2001 UNIDROIT UCH

2003 ICH

X

X

X

X

X

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Appendix I 429 1954 1st Hague Prot Togo Tonga Trinidad and Tobago Tunisia Turkey Turkmenistan Tuvalu Uganda Ukraine United Arab Emirates United Kingdom of Great Britain and Northern Ireland United States of America Uruguay Uzbekistan Vanuatu Venezuela (Bolivarian Republic of) Viet Nam Yemen Zambia Zimbabwe TOTALS

2nd Prot

1970 1972 Illicit WHC

1995 2001 UNIDROIT UCH

X X X X X X

2003 ICH X

X X

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Appendix II Defining the Cultural Heritage

1965 Hague Convention Article 1 For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership: a

b

c

movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a); centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as ‘centres containing monuments’.

1970 Convention Article 1 For the purposes of this Convention, the term ‘cultural property’ means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories: a

rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;

Appendix II 431 b

c d e f g

property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; elements of artistic or historical monuments or archaeological sites which have been dismembered; antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; objects of ethnological interest; property of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuory art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material;

h i j k

rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; postage, revenue and similar stamps, singly or in collections; archives, including sound, photographic and cinematographic archives; articles of furniture more than one hundred years old and old musical instruments.

UNIDROIT Convention Article 2 For the purposes of this Convention, cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention.1

World Heritage Convention Article 1 For the purposes of this Convention, the following shall be considered as ‘cultural heritage’: monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings

1 The List is the same as that listed above (a)–(k) for the 1970 Convention.

432

Appendix II

and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: 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; sites: 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.

Underwater Cultural Heritage Convention Article 1 – Definitions For the purposes of this Convention: 1

(a) ‘Underwater cultural heritage’ means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: (i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character. (b) Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage. (c) Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage.

Intangible Cultural Heritage Convention Article 2 For the purposes of this Convention, 1

The ‘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 recognise 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

Appendix II 433

2

cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as 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. The ‘intangible cultural heritage’, as defined in paragraph 1 above, is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.

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Newspaper articles ‘All at Sea and Undefended’ British Archaeology News, 1994. ‘Wreck plunderers find way through law on war graves: Battleship Royal Oak’ The Times, 4 April 1994. ‘Shipwreck gives up her hoard of perfect porcelain’ The Times, 25 January 1995, p. 4. ‘Wreckfinder hits £50m crock of gold’ Sunday Times, 27 October 1996, p. 11. ‘Golden treasure from shipwreck to fetch £1.5m’ The Times, 7 September 1996, p.11. ‘Ten days on the Cazador’ Diver Magazine, June 1996, pp. 86–9. ‘Will the Hanover yield a fortune in gold?’ Diver Magazine, December 1996, p. 59. ‘Hanover – is the treasure still on board?’ Diver Magazine, January 1997, p. 47. ‘Mint Duoro coins draw the bidding’ Diver Magazine, January 1997, p. 46. ‘Titanic man finds world’s oldest ships 1,000ft down’ The Sunday Times, 27 June 1999. ‘Divers Looting Sunken D-Day War Graves’ The Independent, 31 October 2000. ‘Iraq Accused of Sheltering Behind Antiquities’ The Age, 2 April 2003. ‘American Chinese collectors urge boycott of Christie’s’ People’s Daily Online, 25 February 2009. ‘China pressures Christie’s to hand over sculptures’ International Herald Tribune, 17 February 2009. Abungu, G., ‘The Declaration: A Contested Issue’ (2004) 1 ICOM News, p. 5. A.B, ‘France gives artefacts to Burkina Faso’ The Art Newspaper, September 2007, p. 9. Ahuja, N.P., ‘India: A tale of two markets’ The Art Newspaper, September 2008, p. 59. Bailey, M., ‘International outrage as great museum is sacked’ The Art Newspaper, May 2003. Bailey, M., ‘Archaeological sites the worst casualties’ The Art Newspaper, July–August 2003. Bailey, M., ‘UK Law to Ban Trade in Illicit Antiquities’ The Art Newspaper, July 2003, p. 8. Bailey, M., ‘Seized: over 600 objects looted from Iraq’ The Art Newspaper, September 2003, p. 1. Bailey, M., ‘Swiss pass law to restrict the illicit trade’ The Art Newspaper, September 2003, p. 7. Bailey, M., ‘The National Museum in Baghdad one year on’ The Art Newspaper, April 2004, p. 5. Bailey, M., ‘Aborigines sue over human remains’ The Art Newspaper, March 2007, p. 22. Bailey, M., ‘Natural History Museum returns Aboriginal remains’ The Art Newspaper, June 2007, p. 18.

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Bailey, M., ‘University criticised over incantation bowls’ The Art Newspaper, May 2007, p. 6. Bailey, M., ‘Egypt asks British Museum for Rosetta stone’ The Art Newspaper, June 2007, p. 8. Bailey, M., ‘Benin bronzes finally united’ The Art Newspaper, June 2007, p. 13. Bailey, M., ‘Iraq war thwarts loan to Louvre’ The Art Newspaper, April 2008. Bailey, M., ‘Afghan objects seized in Britain will go home’ The Art Newspaper, October 2008, p. 6. Bailey, M., ‘Ethiopia moves for Maqdala treasures’ The Art Newspaper, November 2008, p. 26. Bessis, S., ‘Carthage’s long-awaited rescue’ UNESCO Courier, September 1999. Carroll, R. and Diver, K., ‘Iraqi insurgents blow top off historic monument’ The Guardian, 2 April 2005. Chippindale, C., ‘Antiquities as political dynamite’ The Art Newspaper, June 2008, p. 49. D’Arcy, D., ‘Iraq’s history is our history too’ The Art Newspaper, November 2002. D’Arcy, D., ‘For Sale: works seized by Stasi’ The Art Newspaper, June 2008, p. 60. Doole, J., ‘In the News’ (2003) 13 Culture Without Context 15. Gee, A.L. and Lopez, A., ‘Pride from the Deep: The ocean bed delivers proof of the Philippines role in Asia’s trading history’ CNN Asianow, 1996. Harrington, J., ‘Hunt for Treasure, but It’ll Cost a Pretty Doubloon’ St Petersburg Times, 1 September 2000. Harris, L., ‘US snipers on Samarra’s spiral minaret: The US military says “military necessity” takes precedence over the safeguarding of this Islamic landmark’ The Art Newspaper, March 2005. Harris, L., ‘Louvre refuses Turkish request for Ottoman tiles’ The Art Newspaper, February 2007, p. 20. Harris, L., ‘Serb leaser accused of systematic destruction of historic buildings’ The Art Newspaper, July–August 2008, p. 4. Horsnell, M., ‘Wreck Plunderers Find Way Through Law on War Graves: Battleship Royal Oak’ The Times, 4 April, 1994. Jansen, M., ‘Bombing and looting Iraq’s heritage’ The Gulf Today (United Arab Emirates), April 4, 2005. Kaufman, E., ‘China puts pressure on US for import ban on cultural goods’ The Art Newspaper, April 2008, p. 7. Kaufman, J., ‘Filed museum returns Maori skulls’ The Art Newspaper, October 2007, p. 18. Lufkin, M., ‘Antiquities dealer arrested for smuggling Iranian object’ The Art Newspaper, March 2004, p. 9. Lufkin, M., ‘Satrving Buddha sculpture returned to Pakistan’ The Art Newspaper, March 2007, p. 5. Martin, P., Vulliamy, E. and Hinsliff, G., ‘US army was told to protect looted museum’ The Observer, 20 April, 2003. McDonald, K., ‘Breech of the law’ Diver, December 1999, p. 75. Osser, E., ‘London and Paris markets flooded with looted Iranian antiquities’ The Art Newspaper, January 2004, p. 9. Pearlstein, W., ‘Letter to the Editor: Implications of the Schultz Case’ The Art Newspaper, February 2003, p. 4. Scanlan, D., ‘Pirates Sink Low, Steal Cannons From St. Augustine Shipwreck’ Florida Times-Union, 4 August, 1999.

Bibliography 447 Schuster, P., ‘The Treasure of World Culture in the Public Museum’ (2004) 1 ICOM News, p. 4. Sharp, E., ‘Khmer sculpture handed back to Cambodia’ The Art Newspaper, September 2007, p. 9. Singh, K., ‘Do we really want the freer circulation of cultural goods?’ The Art Newspaper, June 2008, p. 29. Smith, S., ‘Ghandi glasses to go home’ Courier Mail, 7 March 2009, p. 48. Stoilas, H., ‘US returns over 1,000 antiquities to Iraq’ The Art Newspaper, October 2008, p. 6. Sykes, K., ‘Consequences of the Iraq War: Sudden and Draconian’ The Art Newspaper, July 2004, p. 23. Varola, J., ‘Georgia and Russia rattle their sabres over war damage’ The Art Newspaper, November 2008, p. 5. Wilson, F., ‘Japan Moves Towards Ratifying Unesco Convention’ The Art Newspaper, May 2002, p. 14.

Thesis Blake, J.A., A Study of the Protection of Underwater Archaeological Sites and Related Artefacts with Special Reference to Turkey, Unpublished Ph.D. Thesis, Dundee: University of Dundee, 1996. Dromgoole, S., Law and the Underwater Cultural Heritage: A Legal Framework for the Protection of the Underwater Cultural Heritage of the United Kingdom, Unpublished Ph.D. Thesis, Southampton: University of Southampton, 1993. Firth, A.J., Managing Archaeology Underwater, Unpublished Ph.D. Thesis, Southampton: University of Southampton, 1996. Giesecke, A.G., Historic Shipwreck Resources and State Law: A Development Perspective, Unpublished Ph.D. Thesis, Catholic University of America, 1992. Roodt, H.C., Legal Aspects of the Protection of Cultural Heritage, Unpublished LLD Thesis, Bloemfontein: University of the Free State, 2000. Titchan, S.M., On The Construction of Outstanding Universal Value, Unpublished PhD Thesis, Canberra: Australian National University, 1995.

Reports Boylan, P.J., Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc. CLT-93/WS/12. Schneider, M., The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Research Paper, UNIDROIT, Rome, 28 November 1995.

Presentations Clément, E., ‘Development of an International Convention on the Protection of the Underwater Cultural Heritage’, paper presented at Law of the Sea Institute, 1998, p. 31. Stemm, G., ‘Protection of Our Underwater Cultural Heritage: Thoughts on the Future of Historic Shipwrecks’, paper presented at Law of the Sea Institute, 1998, p. 7.

Index

Abandonment, of ownership 288, 309–11, 335–7, 350 Abbey of St. Denis 66 Abu Simbel 227, 270 adverse possession 173, 246 Afghanistan/Afghan 10, 82–4, 131, 147, 160, 188, 221, 262, 279–84, 389, 392–3, 401 see also Bamiyan Buddhas and Taliban Afo-A-Kom 16, 163 African World Heritage Fund 270 Agreement on Plant Genetic resources for Food and Agriculture (2001) 366 Ahnenerbe 74 aircraft 334, 336–7, 348, 350 Alberti, Leon Battista 289 Algeria 163, 270 Alidža mosque 58 al-Mutawakkil mosque 62 Altes Museum 161 Amenhotep III 152 Amsterdam (vessel) 334, 342 Angkor/Ankor Wat 28, 56, 104, 258, 270, 278–9, 385, 392, 418 Anglo-Saxon cultural heritage 291 Antikythera wreck 290 antique dealers 36, 185, 187–8 antiquities 1, 7, 17, 20, 23, 60, 63, 113, 74, 169, 287, 302, 315; trade in (market in) 5–7, 17, 19, 23, 37, 40, 53, 60–3, 94, 113, 74, 132–4, 136–9, 152–7, 161–2, 164, 166, 175–6, 178, 182, 184, 187, 190, 193–4, 198–200, 202, 204–5, 207, 209, 213–14, 218–20, 222–3, 290–1, 293, 410, 421 antiquarianism 12, 132–3 American Commission for the Protection and Salvage of Artistic and Historic Monuments in Europe 74

Arab states 56 archaeological sites 3, 21, 60–3, 85, 91, 97, 130, 133, 137, 150, 159, 169, 176, 198, 205–6, 211, 220, 224–7, 230–1, 239, 262, 294, 325, 327, 335; excavations/ illicit excavations 54, 60–3, 97, 116–17, 132–5, 137, 147, 150, 155, 159, 167–9, 174–5, 185, 192, 198, 203, 220–3, 279, 292–3, 307, 309, 313, 319, 342, 345, 351, 356, 358 archaeology, discipline of 12, 19, 132, 321 Arabian Oryx Sanctuary (Oman) 255 Aramaic incantation bowls 221 Arizona, USS 334 Armenia 131 Arnaudija mosque 57 Art Institute of Chicago 164 Ashanti 162 Asia Development Bank 279 Aswan High Dam 226 Athens 161 Australia 36, 42, 47, 50, 82, 111, 165, 170, 178, 191, 221–2, 225, 256, 258, 281, 292, 313; Iraq (reconstruction and Repeal of Sanctions) Regulations 223; Protection of Movable Cultural Property Act 192 Austria 74, 194 Azerbaijan 131 Babylon 62, 89, 130 Baedeker raids 73 Baghdad National Museum and national Library 61–3, 85, 92, 104, 112, 130, 220, 222, 391 Balkans 56, 88, 131, 393, 399 Bamiyan Buddhas 10, 262, 279–84, 392, 401–2 Bass, George 291

Index Batavia 292 Bath 21, 73 Belgium 163, 192 Belgrade 70 Benin 142, 162, 257 Benin bronze 156, 162, 165, 172 Berlin 161–2 bi-lateral agreements 49, 189–92, 194, 208, 338, 357, 381 Blaškic´, Timohir (General) 58, 128 blue shield 61, 79, 99, 104, 119 Bodleian Museum 163 bona fide (good faith) purchaser 105, 107, 148–9, 150–1, 173, 182, 196, 201–2, 204, 206, 219, 300 Borobudur 227, 270 Bormann, Martin 74 books 21, 31, 70, 85, 141, 169, 316, 414, 419 Bolivia 160, 191 Bosnia (Bosnia-Herzegovina) 57–8, 128, 257 Boylan Report (Review of the Convention for the Protection of Cultural Property in the Event of Armed) 80, 111, 113 Brazil 256, 413 Britain/British see also United Kingdom 132, 134, 141–2, 147, 160–2, 225 British Court of Vice Admiralty 12 British Library 145 British Museum 145, 147, 158, 160–4, 296 British Navy 144 bronze age 291–2 Buddha 160 Buenos Aires 332 Burkina Faso 160, 182 Burma 163 Byelorussia 74 Byron, George Gordon (Lord) 161 Canada 42, 47, 50, 144, 146, 165, 170, 178, 191, 225, 292, 298, 302, 310, 312, 339, 369 Cambodia 28, 56, 80, 104, 131, 137, 155, 160, 188, 191, 193, 258, 270, 278–9 see also Angkor/Ankor Wat Cambridge University 163 Cameroon 16, 163 Canterbury 73 Cape Geladonya 288 Cathage 227 caves 3, 287 Cazador (vessel) 293 Central America, SS (vessel) 297, 306, 311

449

Charter for the Conservation of Places of Cultural Significance in 1979 (Burra Charter) 364 Charter on the Protection and Management of Underwater Cultural Heritage 332, 341 Chiang Kai-shek 162 Chinese porcelain 293–3, 296 China 11–12, 137–8, 147, 152–5, 161–3, 191, 193, 211, 239, 257, 262, 270; Cultural Relics Law 152 Chklaver, Georges 71 Coalition Provisional Authority 62 Codes of ethics 196, 320 collectors 132–3, 151, 164, 185, 219 colonialism/colonial rule 9, 22, 41, 43, 132, 134–5, 137, 142, 161, 163, 225, 389 Cologne 21, 73; Cologne Cathedral 43, 258 Columbus-America Discovery Group 297 Comité Maritime International (CMI) 330 Commission on Responsibilities of the Preliminary Peace Conference of Paris 69, 122 common heritage of humankind 5, 11–13, 72, 80–1, 85, 139–40, 157, 224, 228–9, 281, 321–3, 358, 406–13 common heritage of mankind see common heritage of humankind compensation 70, 107–8, 141, 148–9, 151, 180–2, 196, 199, 202, 204–8, 212–13, 218 Congo, Democratic Republic of 246, 260, 394 conquistadors 132 Consolato del Mare 289 contiguous zone 324–8, 348–9 continental shelf 298, 325, 347–51, 357 1970 Convention (Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property) 23, 26–7, 29, 31, 33–4, 36–7, 39–43, 47, 50, 53, 55, 166–96, 358, 389–92, 395–8, 400, 404–5, 409–10, 416–17, 419, 421–3; authentication 33; definition of cultural property 23, 26–7, 168–70; entry into force 39; export and import controls 176–83; national services 185–7; negotiation history 132–5, 166–7; official languages 33; preamble 167; reservations 36–7; revision of 40; respectivity of 41; sanctions 187–8

450

Index

Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea (1910) 330, 358 Convention for the Protection of the World Cultural and Natural Heritage see World Heritage Convention Convention for the Safeguarding of Intangible Cultural Heritage see Intangible Cultural Heritage Convention Convention on Biological Diversity (1992) 365 Convention on the Law of the Sea (UNCLOS) (1982) 288–9, 321, 326, 330–1, 336–7, 347–9, 356, 358, 360–1, 404 Convention on the Protection of the Underwater Cultural Heritage see Underwater Cultural Heritage Council of Europe Convention on the Protection of the Archaeological Heritage (1969) 25 Côte d’Ivoire 258 Council of Europe 8, 25, 329–30; Recommendation 848 330, 332–3 Crete 290 criminal sanctions 26, 42, 111, 122–30, 139, 154–5, 187–8, 219, 282, 353, 397, 400, 402–3 Croatia 57, 83, 88 see also Dubrovnik 57 Crown of St. Stephen 108, 163 Ctesiphon 59, 61 cultural heritage, definition of 1–30, 20–30, 85–6, 168–70, 230–2, 333–5, 371–3 cultural property see cultural heritage customary international law 52–3, 67, 71, 93, 122–3, 127–30, 191, 278, 280, 282–4, 320, 392, 394, 405, 424 cylinder seals 106 Cyprus 106, 108, 188, 191 Czar Nicholas II 67 Czech Republic 178 Dahlem Museum 162 dance 4, 362, 365 Dartmouth (vessel) 292 Dean, John and Charles 290 de Braak (vessel) 293 Deep Shipwreck Explorer’s Association 319–20 Declaration Concerning the Intentional Destruction of Cultural Heritage (2003) 284

Declaration of the Principles of International Cultural Co-operation (1966) 406 Declaration on the Protection of Cultural Property in the Course of Armed Conflict (International Museums Office) 72 Declaration Renouncing the use, in Times of War, of Explosive Projectiles Under 400 Grammes Wight (1868) (Declaration of St. Petersburg) 66 Delhi 147 Delphi 415 Demarchi, Francesco 289 Denmark 163, 192, 292 Dianna (vessel) 293 Draft Convention for the Conservation of the World’s Heritage 227 Draft Convention for the Protection of National Historic Artistic Treasures 134 Draft Convention on the Repatriation of Objects of Artistic, Historical or Scientific Interest, Which Have Been Lost, Stolen or Unlawfully Alienated or Exported (1933) 134 Draft European Convention on the Protection of the Underwater Cultural Heritage 330, 347 Draft International Protection of Monuments, Groups of Buildings and Sites of Universal Value 227 Draft International Regulations on the Laws and Customs of War (1874) (the Brussels Declaration) 66 Dresden 86 dualist states 41 Dubrovnik 58, 123, 129, 393 due diligence 152, 202, 206–8, 212, 218 Dunant, Hendry 64 Durer 151 Durham Cathedral 145 Duart (vessel) 292 Duoro (vessel) 293 Dutch-East Indiaman 292, 296 economic value (of cultural heritage) 5–7, 288–9, 292, 294, 296, 300–1, 303, 313–20, 322–3, 325, 329–30, 339, 342–6, 348–9, 398

Index

451

Egypt 12, 16, 65, 134, 137, 152, 160–1, 225–6, 270, 415; Law on the Protection of Antiquities 152 see also Abu Simbel and Aswan High Dam Eastern bloc 9 Ecuador 258 Edinburgh 144 education 4, 13, 31, 67, 70, 113, 122–3, 128, 139, 164, 167, 175, 185–6, 196, 206, 224, 266, 273–4, 284, 329, 353–5, 365, 369–71, 375, 378, 386, 400, 409, 413–14, 417, 419–21, 424 Eisenhower, Dwight (General) 73 Einsatzstab Reichsleiter Rosenberg 74 Elizabeth I (Queen) 225 Elizabeth II (Queen) 156 Elgin, Thomas Bruce (Lord) 14, 160 Elgin marbles see Parthenon marbles El Salvador 191 Engelhardt, Conrad 291 England 144, 146–50, 153–4, 156, 292 erga omnes obligations 9, 50, 52–3, 260, 277–8, 283, 401 Eritrea 56; Stella of Matara 56 Ethiopia 56, 147, 160, 162–3, 259 ethnological objects 169, 171, 190 European Convention on Human Rights 8, 107 European Convention on Offences Relating to Cultural Property (1985) 26 European Union 279, 281 European Convention on the Protection of the Archaeological Heritage (1992) 25, 347 European Union Directive on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State (1993) 143 Exeter 73, 86 exclusive economic zone 296, 325, 348–9 Explorers Club (US) 298 export controls 16–17, 19, 23–4, 37–9, 54–5, 61, 74, 79, 104–8, 116, 125, 140, 154, 166, 174–83, 195, 208–15, 326, 397–8

France/French 3, 12, 16, 65, 133, 137, 141–2, 148–9, 150–1, 156, 160–3, 173, 204–5, 220, 256, 281, 359 Franco-Prussian war (1870–71) 66, 81

Ferhat Pasha mosque 57 finds, law of 295, 300, 311–13, 316 First World War 56, 69–73, 81, 122, 141 Fisher, Mal 294 Florence 74, 227, 229, 270 Florida 294 Food and Agricultural Organisation 363 fossils 3

Hague Convention (Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954) 56–131, 134, 141, 221, 280, 388–9, 391–410, 416–18, 422–3; authentication 33; Commissioner-General for Cultural Property 103; definition of cultural property 21, 24–5, 27, 85–6; entry into

Gabon 270 Geldermalsen (vessel) 293, 296 Gelidonya (vessel) 292 Geneva Conventions (1949) 73, 75, 81, 110–12, 127, 130; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 73, 75, 81; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked members of Armed Forces at Sea 73, 75, 81; Geneva Convention (III) relative to the Treatment of Prisoners of War 73, 75, 81; Geneva Convention (IV) relative to the Protection of Civilian Persons in Times of War 73, 75, 81; 1977 Protocols 108, 110–11, 113, 127, 129–30 Geneva Convention for the Amelioration of the Condition of Wounded in Armies in the Field (1864) 65 Gentilis 64 Georgia 131 Germany 42, 70, 73–5, 102, 141, 192, 256, 281; East Germany 142, 151 Ghana 194 Ghandi, Mahatma 164 Goering, Herman (General) 74, 147 Glasgow City Council 143 Gowon, Yakubu 156 group rights 8, 136, 145, 198 Grotius 64 Greece 11–12, 16, 133, 137, 142, 153, 158, 160–1, 289, 329–30, 415, 419 Guatemala 191 Guggenheim Museum 164 Gulf war see also Iraq 34, 40, 57, 59–63, 77, 89, 111, 130, 181, 219–23, 391 Guernica 72 Guinea 258

452

Index

force 38; First Protocol (Protocol I) 34, 36, 104–8; international conflict 81–3, 111; internal conflict 83–4, 111; official languages 33; peace, in times of 87–9; Protecting Power 103–4; Preamble 80–1; Register for Special Protection 79; Regulations for the Execution of the Convention 45, 79, 99; reservations 36; revision of 39; Second Protocol 1999 (Protocol II) 34, 36, 40, 46, 97, 102, 110–30; Special protection 97–102 Hague Convention (Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954) Second Protocol (1999) 34, 36, 40, 46, 97, 102, 110–30, 134, 141, 221, 392, 399, 416–18; Committee for the Protection of Cultural Property in the Event of Armed Conflict 117–19, 126, 416, 418; enhanced protection 110, 117–18; Fund for the Protection of Cultural Property in the Event of Armed Conflict 118, 126–7, 416, 418; List of Cultural Property under Enhanced Protection 118, 416; peace time duties 112–13; penal measures 122–6 see also criminal sanctions; UNESCO, assistance from 118 Hague Conventions Concerning the Laws and Customs of War on Land (Convention IV) (1899/1907) 53, 67–71, 75–6, 78, 80, 85, 93, 109, 122, 127, 129–30 Hague Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare (1923) 71, 73 Hague Peace Conferences (1899 and 1907) 67 Hamburg 73 Hammurabi code 161 Hanover 293 Hanseatic League 289 Harvard University 163 Hatcher, Michael 296 Havana 297 Hebron 116 Heidelberg 141 Henry XIII (King) 290 Herculaneum 225 Hermitage Museum 164 Herzegovina 57; Mostar 57 Holy Roman Empire 65 Holy See 35

hominids 3 HMS Victory (vessel) 114 human remains 165 human rights 31, 41, 165, 223, 363, 367, 370–3 Hungary 108, 163 Ibrahim Mosque 116 Iceland 163 Icelandic manuscripts 163 Ickingham bronzes 146, 150 import controls 24, 37–8, 54–5, 106, 138–9, 166, 168, 174–93, 196, 201, 208, 210, 219, 222, 352, 398 inalienable property 173, 203 India 42, 134, 146–7, 155, 158, 160, 164, 257–8, 270, 281 Indonesia 194, 227, 270, 296 indigenous groups 8, 10, 143, 145, 148, 165, 198, 206, 210–11, 215, 231, 363, 365–6, 368, 371, 385 in rem action 295, 299, 304–6, 311 in situ protection 15, 137, 159, 185, 292, 304, 316–17, 322, 335, 340–2, 345, 350 Institute for the Research and Exploration of the Sea (IFREMER) (France) 298 Institute of International Law’s Manual of the Laws and Customs of War 1880 (Oxford Manual) 66 intellectual property 17, 24, 364 intangible cultural heritage 18, 20, 28, 362–7 Intangible Cultural Heritage Convention (Convention for the Safeguarding of Intangible Cultural Heritage) 18, 37, 39–40, 43, 49–52, 367–87, 390, 395–6, 404, 410, 416, 418, 420, 423; authentication 33; Committee for the safeguarding of intangible cultural heritage 376–7; definition of intangible cultural heritage 28, 371–3; federal clause 42; Fund 37, 377, 383; General Assembly 376–8; List of the Intangible Cultural Heritage of Humanity List 51, 377, 411; List of Intangible Cultural Heritage in Need of Urgent Safeguarding 377, 379; official languages 3; preamble 367–8; reservations 37; secretariat 376 Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control 75 internet 293

Index International Center for the Study of the Preservation and Restoration of Cultural Property (ICCROM or Rome Center) 265, 272–3, 279, 402, 422 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation 135, 143–4, 416, 418 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore 366 International Co-ordinating Committee on the Safeguarding and Development of the Historic Site of Angkor (ICC) 279 International Committee of the Blue Shield 119, 402, 422 international community 50–2, 229, 244–6, 277–8, 281–4, 286, 368, 396, 402, 406, 408, 411–12 International Council of Museums (ICOM) 13, 22, 196, 421 International Council on Monuments and Sites (ICOMOS) 22, 226, 230, 234, 251, 265, 272–3, 332, 341, 343, 364, 402, 422 International Covenant on Civil and Political Rights (1966) 367, 389 International Covenant on Economic, Social and Cultural Rights (1966) 367, 389 international humanitarian law 63, 65, 76, 80, 111, 280, 412 International Institute for the Unification of Private Law (UNIDROIT) 196 International Law Association (ILA) 330–2, 335, 339, 341, 343, 360 International Labour Organisation 363 International Maritime Organisation (IMO) 320, 330 International Monetary Fund 363 International Museum’s Office/ International des Musées (League of Nations) 71–2, 81, 134 International Salvage Convention (1989) 330–1, 358–9 International Seabed Authority 322 International Tribunal for the Former Yugoslavia (ICTY) 58, 123, 127, 403 International Union of the Conservation of Nature (IUCN) 227, 231, 266, 272–3, 402, 422 Italy/Italian 12, 65, 73–4, 133, 137, 142, 147–50, 152–4, 163, 191, 204, 220, 225,

453

227, 256–7, 270, 289 see also Florence and Venice Iran 59, 110, 134, 137, 151–2, 160, 281 Iraq see also Gulf War 34, 40, 59–63, 77, 82, 86, 89, 104, 110, 131, 134, 137, 158, 160, 181, 188, 219–23, 389, 391–3, 399, 423 see also Baghdad Ireland 194, 303, 312 Ishtar Gate (Iraq) 62 Israel 56, 83, 97, 116, 134, 249, 401, 417 J. Paul Getty Museum 164 Japan 73, 137, 191–4, 257, 279, 281, 365 Jemaa el Fna Square 384–5 Jewish cultural heritage 21, 52, 75, 141 Jerusalem 97, 116, 249, 401 Jokic´, Miodrag (Admiral) 58 Jomeh Mosque 59 Jordan 59, 134, 220–1, 249 Juno 311 jus ad bellum 76 jus cogens 52 jus in bello 76 Kabul 147, 279, 281; Museum 279, 392 Kenya 194 Khmer culture 160, 278 Kiksadi clan (US) 145 Kinin 57 Kobe 73 Koh-i-Noor diamond 147 Koran 64; of the Caliph Othman 141 Korea 162, 365 Kosovo 83 Kuwait 59, 77, 110, 188, 220 Krajina 57 Kunstschutz corps 74 Lady Elgin 311 Lakota Ghost Dance Shirt 143 Lahore 147 La Galga (vessel) 311 Lake Eyrie 302, 310, 312 Lake Michigan 311 Lamboglia, Nino 291 landscapes 2, 4, 25, 29, 54, 230–1, 236–7, 266, 283–4, 287, 366, 386, 395–6 Lašva Valley 58 League of Nations 12, 71–2, 134 League of Nations Preliminary Draft International Convention for the Protection of Historic buildings and Works of Art in Times of War (1938) 72, 81, 122

454

Index

Lebanon 84, 134, 417 legal value of cultural heritage 19–20, 398 Levant 56, 83, 131, 221 libraries 12, 57, 61, 65, 66, 70, 81, 168, 222 Libya 147 Lieber, Francis 65 Lieber Code (Instructions for the Government of Armies of the United States in the Field 1864) 12, 65 Lijiang (China) 385 Lindisfarne Gospels 145 Lion of Judah statute 163 List of Masterpieces of Oral and Intangible Heritage of Humanity 51 Living Human Treasures program 364 London 88, 144, 149, 151, 161, 193, 220, 293, 299 looting, in war 43, 56, 60–3, 65, 72, 74–5, 91–2, 94, 112, 122, 130, 134, 141, 161–2, 220, 222–3 looting, in times of peace 142, 156, 162, 221, 279, 349, 392 Louvain 69, 81, 141 Louvre 88, 164, 290 Lübeck 73 Lusitania 312 Lydian hoard 142 Mali 191 Magen, Hippolyte 291 Mandalay regalia 163 Maori 153 Marrakech 384 Marchese paolo da Pozzo 149 Marischal Museum Aberdeen 144 Marquesas Keys (Florida) 294 Maryland 302 Mary (vessel) 342 Mary Rose (vessel) 290 Masterpieces of Oral and Intangible Heritage of Humanity program 51, 365–8, 385, 411–12 Mayan stelae 14 Menilek throne 163 Mesopotamia 158 Metropolitan Museum of Art 142, 164 Mexico 10, 38, 135, 137, 150, 160–1, 173, 191, 256–7; National Museum of Anthropology 10 Moenjodaro (Pakistan) 270 Monte Cassino 74 Monist states 41

Military necessity (doctrine of ) 63, 66, 68–78, 80, 90–1, 93, 100–2, 109–11, 113, 117, 119–22, 397 Military Tribunal at Nuremberg 75, 122, 127 monuments 3–4, 7, 12, 21–2, 25, 31, 58, 62, 67–74, 78–9, 81, 85–6, 97–8, 102, 109, 122–3, 128, 130, 133, 135–7, 146, 150, 155, 169, 176, 224, 230–2, 235, 284, 396, 402, 414, 419, 422 Monuments, Fine Arts and Archives 74 Montezuma (Emperor) 161 Mostar 57; Bishop’s palace 57; Bridge 57, 257 Münster Treaty (1648) museum 4, 7, 10, 12–13, 22, 50, 59–63, 66, 85–6, 91, 97, 98, 112, 117, 130, 133–5, 137, 145, 161–2, 164–5, 168, 176, 179–80, 185, 203, 205, 220, 222, 291, 304, 315–16, 322, 345, 391–2, 398, 421 Museum of Ethnology (Vienna) 161 Music/musical instruments 3, 169, 362, 365, 384 Mussolini, Benito 147 Myanmar 262 Nagoya 73 Napoleon 12, 65, 67, 141 nationalism 9–10, 16–17, 407–9 National Gallery (London) 88 National Maritime Museum (London) 329 Native American cultural heritage 138 National Association of Academics of Science (US) 298 National Association of Dealers in Ancient, Oriental and Primitive Art (US) 152 National Marine Historic Society 298 Nazi 21, 74, 92 Nefertiti (Queen) 161 nemo dat quod no habet 148–9, 151, 202–4, 219 Netherlands 74, 99, 102, 108, 194, 270; Royal Picture Gallery 99 Netherlands Archaeological Society 70–1 Netsuke 149 Nuestra Señora de Atocha (vessel) 294–6, 301, 311, 315 Newcastle (UK) 145 Newfoundland 298 New York 142, 152, 164, 220, 293, 297 New Zealand 153, 165, 225 Nicaragua 191

Index Nigeria 137, 146, 155–6, 160, 162; National museum 156 Nok 146, 156 Nordic Iron Age clinkerbuilt boats 291 Nordic World Heritage Foundation 270 North Atlantic Treaty Organisation (NATO) 392 Northern Ireland 144 Norway 192, 270, 291 Norwich 73 Nova Scotia 12 occupation/occupied territories 22, 35, 59, 61–2, 67, 69, 74–6, 79, 80, 82, 91, 93–7, 99, 104–8, 116–17, 119, 125, 132–5, 142, 144, 147, 160, 163, 188–9, 219–21, 213, 389, 391, 401 Obasanjo, Olusegun 156 Obelisk of Axum 147, 163 Oleron, Laws of 289, 312 Olympic games 161 Oman 255 Opium war 12, 142, 161 Organisation of the Islamic Conference 281 Osaka 21, 73 Ottoman Empire 134, 142, 160 outstanding universal value (concept of) 224, 229–42, 244, 249–53, 256, 261–4, 274, 279, 282–3, 285, 378, 390, 393 Oxford University 163 pacta sunt servanda 48 Pakistan 147, 160, 270, 281 Palestine 83, 116, 131, 134, 401; West Bank 97, 116 Palestinian Liberation Organisation 83 palaeontology/palaeontolocigal objects 169 Panama 297 Pan-American Union 71 Pandora, HMS (vessel) 292 Parthenon marbles 11, 14, 142, 147, 158, 160–1, 165, 172 Paris 66, 74, 81, 151, 156, 192 Paris Conference on Reparations 105 patrimony 1, 20, 190 Pearl Harbour 334 penal sanctions see criminal sanctions Pergamon Alter 161 Pergamon Museum 161 Persipolis 151 Peru 135, 137–8, 150–1, 154–6, 160, 191, 415

455

Preah Vihear temple 131 Philippines 11 Piombino Apollo 290 Pius II 224 Plavšic´, Biljana (former Serbian President) 58 Poland 65, 74, 82, 111, 257 Polybius 64 Pompeii 225 Portugal 415 Prado Museum 164 pre-Columbian cultural heritage 150–1, 154 provenance 15–16, 113, 159, 175, 182, 187, 193–4, 202, 205, 219–20, 308, 421 Prussia 225 Puerto Rico 302 Punjab Kingdom 147 Quatremére de Quincy, Antione 12, 225 Ramases II 227 Recommendation Concerning the International Exchange of Cultural Property (1976) 54, 406 Recommendation Concerning the Most Effective Means of Rendering Museums Accessible to Everyone (1960) 54 Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works (1968) 22, 54, 410 Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage (1972) 10, 244, 406, 411 Recommendation Concerning the Safeguarding of the Beauty and Character of Landscapes and Sites (1962) 54 Recommendation for the Protection of Movable Cultural Property (1978) 23, 54, 411 Recommendation on International Principles Applicable to Archaeological Excavations (1956) 25, 54, 134, 410 Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It (1976) 54 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property (1964) 54–5, 135, 186

456

Index

Recommendation on the Safeguarding of Traditional Culture and Folklore (1989) 54, 364, 367 Red Bay wreck (Labrador) 292 Red Cross (international Committee of) 64, 402, 422 religious buildings and institutions 12, 21, 23, 57–8, 65, 70, 85, 122, 128, 133, 158, 169, 176, 180, 182, 188, 200, 205, 367, 403, 412 Renaissance 12, 65 reprisals 89 res nullius 63 Rheim cathedral 70, 81 Rhodian Maritime Code 289 Rijksmuseum 164 Roerich, Nikolai 71 rock paintings 3, 253, 283 Roman cultural heritage 63, 147 Roman law 289 Rome 63, 73–4, 163, 220, 225 Rosetta stone 161 Rossenberg, Albert 74–5, 122 Rousseau, Jean-Jacques 64 Russia 41, 75, 131 Russo-Japanese war 67 salvage law 288, 292–6, 298, 300–9, 312–15, 317–18, 320, 322, 328–32, 342–6, 358–60 Salvage Convention (1989) 320 Saracens 64 Sarajevo 57; Oriental Institute and National and University Library 57 Second World War 21–2, 52, 56, 72–6, 78, 80, 85–6, 88–9, 91, 93, 95–6, 104, 107, 122, 134, 141, 147, 163, 226, 285, 389 Sara Gradiška 57 Santa Margarita (vessel) 294 Schøyen collection 220–1 Scotland 144, 163; National library 163 self-contained underwater breathing apparatus SCUBA 292, 294 self determination 363, 389 Serbia 57, 83 Sharia law 279 Siebe, Augustus 290 Sikh Kingdom 147 Singapore 194, 303 S´ivapuram Natara¯ja 146 Six day War 56 soft law 54–5, 276, 364, 386

Solomon Islands 35 South Africa 165, 225, 270 South China sea 296 Spain 72, 86, 153, 173, 256–7, 291–2, 311, 359, 393 Spanish galleon 291–2, 294, 301–3, 308 Stasi 142 Stella of Matara 56 Strasbourg 66, 81 statute of limitation 105, 107, 148–9, 173–4, 179, 202, 204–6, 212, 219 Statues of the International Criminal Court (1998) 123 Statute of the International Criminal Tribunal for the Former Yugoslavia (1993) 123, 128–9 St Denis 81 St Gervais 70 Sri Lanka 160 Stockholm 163 Stockholm Declaration on the Human Environment 227 Stone of Scone 144 Struger, Pavle 129 Sudan 226, 246 Sultan Mkwawa skull 141 sustainable development 363, 365, 368, 372 Sutton Hoo 291 Sweden 65, 163, 193, 225 Switzerland 137–8, 166, 191–4, 223, 291, 392 Tajikistan 35 Taliban 10, 83–4, 147, 279–82, 392 Taiwan 162–3 Texas 301 Thailand 131, 194 Third Reich see Nazis Thirty Year War 141 Throckmorton, peter 292 Three Gorges Dam (China) 262 Titanic, RMS 298–300 Tourist/tourism 5, 7, 17, 363, 365, 384 Treaty/treaties see international conventions Treaty of Oliwa (1666) 65 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (1935) (Roerich Pact) 71, 73, 80–1 Treaty of Versailles 70, 141 Treaty of Westphalia 141 Tunisia 227, 290

Index Turkey 106, 108, 134, 142, 153, 158, 160–1, 288, 292, 330; Museum of Antiquities 134 Tyre (Lebanon) 417 Uganda 163 Ukraine 74, 281 Underwater Cultural Heritage (Convention on the Protection of the Underwater Cultural Heritage) 22, 33, 35–6, 39–40, 43, 45, 49, 331–61, 390, 394–5, 397, 399, 403–6, 410, 416, 418, 422; Annex 45, 338, 341, 343–6, 350–2; authentication 33; competent authorities 354–6; definition of underwater cultural heritage 27, 333–5; entry into force 39; geographical application 339–40; official languages 33; reservations 36; Scientific and Technical Advisory Body 415; scope 333–40; seizure and sanctions 350–4; sovereign immune vessels 335–8 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) 26, 30–4, 37, 39–40, 42, 196–219, 388, 392, 398, 410; authentication of text 33; definition of cultural object 26, 199–200; entry into force 39; illegally exported cultural objects 208–15; official languages 33; preamble 198–9; reservations 37; retrospectivity 217–18; revision of 39; stolen cultural objects 201–8 United Kingdom (UK) 11, 14, 34, 35, 42, 48, 59, 82, 86, 102, 111, 130–1, 134, 137–8, 144, 152–4, 166, 173–4, 178, 191–5, 205, 208, 210, 219, 221–3, 293–4, 305, 307–8, 312, 331, 334, 393, 399, 415, 423; Dealing in Cultural Objects (Offences) Act 193; Merchant Shipping Act 312 United Nations 127, 409; Charter of 31, 76, 413–14; General Assembly Resolution 1514 (XV) 43; General Assembly Resolution 1483 222, 423; General Assembly Resolution on Restitution of Works of Arts to Countries Victims of Expropriation 135; Security Council Resolutions 60, 62, 77 United Nations Conference on the Human Environment 227 United Nations Economic and Social Council’s Committee for Development Policy 266

457

United Nations Environment Program 363, 365 United Nations Foundation and World Monuments Fund 270 United Nations Education, Cultural and Scientific Organisation (UNESCO); Assistant Director-General for Culture 276; Constitution of 31, 275, 415; Director-General 33–4, 104, 272, 275–6, 332–3, 348, 416; Executive board 35, 275, 332, 415; General Assembly 247–8, 268–9, 274, 276; General Conference 34, 244, 247, 268, 274–5, 333, 367, 415; good offices (assistance) 84, 143; Purpose of establishing 21, 31; Secretariat 275, 415 United States (US) 16, 34, 35, 37–8, 42, 47, 59–63, 74, 82, 84, 102, 108, 111, 130–1, 134, 137–8, 145, 148, 150–2, 154, 157–8, 160, 163–7, 173–4, 178–9, 181–2, 184, 187, 190–4, 208, 210, 220–3, 225–6, 234, 257, 270, 294–5, 297–8, 301–2, 305–8, 310–13, 316–17, 355, 391, 397, 399, 400, 415; Civil War 65; Emergency Protection of Iraqi Cultural Antiquities Act 223; Native Graves Protection and Repatriation Act 145; National Parks Service 145; National Stolen Property Act 152; RMS Titanic Maritime Memorial Act 298 Universal Declaration on Cultural Diversity (2001) 368 Universal Declaration on Human Rights (1948) 363, 367 universal jurisdiction 122, 125 universal museum 164–5 Uppsala University library 163 Ur 59 Uzbekistan 35 Vasa 292 Vatican 99, 102, 141 Venezuela 256 Venice 227, 229, 270 Venice Charter (International Charter for the Conservation and Restoration of Monuments and Sites) 230 Vermillion Accord 165 Victoria and Albert Museum 163 Vienna 161 Vienna Convention on the Law of Treaties (1969) 32–3, 36, 39, 40, 42, 44–8, 53, 217, 393

458

Index

Vietnam 56, 293 Viking heritage 292 Virginia 311 Visby Town Law 289 Von Ribbentrop, Joachim 74 Vukovar 57 Waffen SS 74 Wagner, Kip 294 Wallace Collection museum 162 Wales/Welsh 88, 144–5 War crimes 58, 70, 75, 122–5, 127–8 War graves 338 warships 310, 335–8 Whitby Abbey 70 Woods Hole Oceanographic Institute (US) 298 works of art 7, 12–13, 17–18, 21, 23, 31, 60, 63, 66–8, 70–2, 74, 78, 85, 104, 109–10, 122–3, 128, 130, 132–42, 152, 161–2, 166, 169–70, 172, 175–6, 178, 182, 187, 192–4, 198, 202, 204, 209, 213–14, 218–23, 230–1, 235, 237–8, 253, 283, 366, 375, 410, 421 World Archaeological Congress 165 World Bank 266, 363 World Heritage Convention (Convention for the Protection of the World Cultural and Natural Heritage) 17, 22, 25–8, 33, 35, 37, 39–46, 48–52, 227–86, 363, 365–7, 373–4, 378–86, 389, 390, 392–6, 401–2, 404–6, 408, 410–11, 415, 418, 420, 422, 424; authentication 33; Committee 46, 228, 232–9, 242–8, 250–6, 258–86, 367, 402, 411, 415, 418, 422; definition of world heritage 22, 25, 230–2; entry into force 39; federal clause 42; List of World Heritage in Danger 46, 245, 255, 257–60, 263, 266, 273, 278–9, 380, 392–3, 402, 411; official languages 33; Operational Guidelines 26, 45, 228, 232–42, 247–8, 250–5, 257–8, 265–6, 271–3, 395; Preamble 228–30; reservations 37; Tentative list 250–2; UNESCO, relationship to 275–6; World Heritage Centre 269, 271–2, 274–6, 285–6, 367, 415, 418; World Heritage Fund 37, 228, 245, 255, 259, 262, 266–71, 278–9, 285, 367, 418; World Heritage List 46, 86, 232–4, 236, 238–9, 242, 248–55, 258, 261, 263,

271–7, 276, 281, 282–3, 286, 365–6, 378, 385–6, 392–5, 402, 411, 418 World Heritage Partnership for Conservation 270 World Heritage sites; Angkor Archaeological Park (Cambodia) 258; Auschwitz Concentration Camp (Poland0 257; Brasilia (Brazil) 256; Central University City Campus of the Universidad Nacional Autónoma de México (Mexico) 256; Chengde (China) 155; Ciudad Universitaria de Caracas (Venezuela) 256; Cologne Cathedral (Germany) 258; Dubrovnik (Old city) (Bosnia) 57, 258, 393; Garamba National Park (Congo) 260; Hiroshima Peace Memorial (Japan) 257; Independence Hall (United States) 257; Kakadu National Park (Australia) 258; Kathmandu valley (Nepal) 258; Luis Barragá House and Studio (Mexico) 256; Manas Wildlife Sanctuary (India) 258; Mostar Bridge (Bosnia) 58, 257; Machu Picchu (Peru) 415; Mount Nimba Strict Nature reserve (Côte d’Ivoire/Guinea) 258; Okapi Wildlife Reserve, Garamba, Kahuzi-Biega, Salonga and Virunga National Parks (Congo) 394; Preah Vihear Temple (Cambodia) 131; Pyramids of Giza (Egypt) 415; Royal palace of Abomey (Benin) 257; Sangay National Park (Ecuador) 258; Simian National Park (Ethiopia) 259; Summer Palace (China) 239; Sydney Opera House (Australia) 256; Tasmanian Wilderness World heritage site (Australia) 43 World Intellectual Property Organisation 364 World Trade Organisation 363 Würzburg 73 Yassiada 292 Yerevan 131 Yokohama 73 York 73 Yugoslavia 83, 110, 144, 258 Zaire 163

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