University of Amsterdam
Faculty of Law
MASTER Thesis
LLM International Trade and Investment Law
From Building Bridges to Death Kisses:
Towards Sustainable and Efficient Frameworks for Cultural Heritage
Protection
Julia Charlotte Mösch
12324434
Word Count: 11.997 (including footnotes 13.726)
Key Words: International Cultural Heritage Law, Fragmentation, UNESCOCIDE
Supervisor: Prof. Dr. Stephan W. Schill
Table of Contents
L
IST OFA
BBREVIATIONS... 1
1. INTRODUCTION ... 2
2. MULTILATERAL FRAMEWORKS FOR CULTURAL HERITAGE
PROTECTION ... 4
2.2. T
HEP
RESERVATION OFH
ISTORIC ANDW
ORLDH
ERITAGES
ITES... 4
2.2.1. Immovable Cultural Heritage ... 5
2.2.2. Movable Cultural Heritage ... 6
2.3. S
AFEGUARDINGI
NTANGIBLEC
ULTURALH
ERITAGE... 9
2.3.1. ICH and Indigenous Rights ... 11
2.4. T
HEP
ROTECTION OFC
ULTURALP
ROPERTY INA
RMEDC
ONFLICT ANDL
OOTEDA
NTIQUITIES... 12
2.4.1. The 1970 UNESCO & the 1995 UNIDROIT Conventions ... 14
2.4.2. The 1954 Hague Convention and its Protocols ... 15
2.5. T
HEP
ROTECTION OFU
NDERWATERC
ULTURALH
ERITAGE... 16
2.5.1. The UN Convention on the Law of the Sea ... 16
2.5.2. The Convention on the Protection of Underwater Cultural Heritage ... 19
2.6. I
NTERIMC
ONCLUSION... 20
3. THE SANDWICH PROBLEM ... 21
3.1. F
RAGMENTATION INC
ULTURALH
ERITAGEL
AW... 21
3.1.1. Avoidance of Large Multilateral Treaties ... 22
3.1.2. Onerous Negotiation Proceedings ... 23
3.1.3. Avoidance of Effective Judiciary ... 24
3.1.4. The Threat of Removal ... 26
3.2. T
HER
OLE OFE
XPERTS INC
ULTURALH
ERITAGEP
ROTECTION... 28
3.2.1. An Alternative Discourse ... 30
3.3. UNESCOCIDE
AND THEP
ARADOXE
FFECT... 31
3.3.1. The Paradox Effect ... 31
3.4. F
UTUREO
UTLOOKS ON THED
ISCOURSE OFC
ULTURALH
ERITAGEP
ROTECTION... 34
4. CONCLUSION ... 36
1
List of Abbreviations
ADR Alternative Dispute Resolution
AHD Authorized Heritage Discourse
CCPCJ United Nations Commission on Crime Prevention and Criminal Justice
CH Cultural Heritage
CPUCH 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage
ECOSOC United Nations Economic and Social Council
IAC International Armed Conflict
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICH Intangible Cultural Heritage
ICH Convention 2003 UNESCO Convention on the Safeguarding of Intangible Cultural Heritage
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICSID International Center for Settlement of Investment Disputes ICTY International Criminal Tribunal to the Former Yugoslavia
ILO International Labor Organization
IMF International Monetary Fund
NIAC Non-International Armed Conflict
SC United Nations Security Council
TRIPS Trade Agreement on Trade Related Aspects of Intellectual Property Rights
UDHR 1948 Universal Declaration of Human Rights
UN United Nations
UNCLOS 1982 United Nations Convention on the Law of the Sea
UNESCO United Nations Educational, Scientific and Cultural Organization UNIDROIT International Institute for the Unification of private Law
UK United Kingdom
USA United States of America
WHC 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage
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1. Introduction
The United Nations Educational, Scientific and Cultural Organization (UNESCO) widely defines culture as "… that complex whole which includes knowledge, beliefs, arts, morals, laws, customs, and any other capabilities and habits acquired by [a human] as a member of society." 1
Hence, culture is not only a marginal subject to todays’ society but an intrinsic part of it, as well as future societies. Culture is important for the identity of people, to facilitate interaction within the community, their feelings of relatedness and interconnectedness, orientation, practical knowledge and much more. For these reasons, there is a general need for the protection of current and past cultural artefacts and habits for the future generations’ enjoyment.
Cultural traditions are especially apparent in the worldwide celebrations of different holy-days, for example, Purim in the Jewish culture or Ramadan in the Muslim culture. However, not only intangible traditions, which are protected under various international treaties, but also tangible objects are protected which relate to many different cultural groups mostly for religious reasons and which have sometimes caused big debates, most recently prevalent the debate on Jerusalem.2
Culture and cultural artefacts are part of many traditions and festivities. But there is also a sinister side to culture. The usage of cultural objects to finance terrorism,3 the illicit trade in
Pre-Colombian artefacts4 or Ivory,5 and the extermination of multiple species due to hunting for
cultural rituals or beliefs are only a few examples to be made.6 In addition, culture could contradict
human rights, for example if cultural tradition requires poaching or bodily mutilation.
Cultural heritage plays an important role to sustain peoples traditions and thereby the identity and the community. However, there is also a risk connected therewith. For example, the Nazis tried to eradicate every shred of evidence of there ever existing a Jewish people, first by destroying their cultural objects and traditions, and then by exterminating the people. International
1 Definition of Culture < http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/cultural-diversity/ > accessed 5 June 2019.
2 CNN Religion Editor Daniel Burke, 'Why Jerusalem's Holy Sites Are So Contested Jerusalem's 5 Most Contested Holy Sites' (CNN, 2019) <https://edition.cnn.com/2017/05/22/world/jerusalem-most-contest/index.html> accessed 23 March 2019.
3 'Curbing The Spoils Of War' (UNESCO, 2019) <https://en.unesco.org/courier/2017-october-december/curbing-spoils-war> accessed 23 March 2019.
4 Leonard D. DuBoff, Art Law (West Publishing Company 1991), p. 10.
5 'Illegal Trade Seizures: Elephant Ivory – EIA International' (EIA International, 2019) <https://eia-international.org/illegal-trade-seizures-elephant-ivory/> accessed 23 March 2019.
6 James Gerken, '11 Animals That Are Now Extinct... And It’s Our Fault' (Huffingtonpost.com, 2013) <https://www.huffingtonpost.com/2013/10/22/11-extinct-animals_n_4078988.html> accessed 23 March 2019.
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responsibility and adherence to various international treaties hopefully facilitate that such behavior will not be repeated.
The international legal order has a big role in the conservation of culture, implying a particular "top-down" approach to cultural heritage protection. Multiple international treaties between nation states were concluded in order to protect and conserve culture at the international level, most notably the UNESCO Constitution, 7 ICESCR, 8 ICCPR, 9 UNESCO Convention on the
Safeguarding of Intangible Cultural Heritage,10 and the UNESCO Convention on the Protection of
Underwater Cultural Heritage, to name a few.11
This thesis will analyze the different types of international legislation for the protection and conservation of culture. To that end, the importance of keeping cultural protection at a high level with an "international oversight committee" such as the UNESCO, seems to play an essential part in protecting and safeguarding the importance culture has for the world. The inauguration of UNESCO was probably by far the most crucial step to safeguard the worlds cultural heritage on an international level. As of today, UNESCO has 193 member states and 11 associate members.12
From this we can infer that it is the opinion juris of the international community that safeguarding the worlds’ cultural heritage is manifestly important.
The continuous overlap of culture and human rights is evident in today’s multitude of treaties primarily enforced for the protection of peoples cultural rights (ICESCR, ICCPR) and by international organizations. In this paper the focus will not be on the implications of human rights in the preservation of culture. However, the issue will be touched upon where relevant as it is necessarily intertwined with the scope of protection of culture. The considerations will concentrate on how international law, looking specifically at multilateral treaties, prosper a cogent, coherent and forward-thinking implementation of protection and maintenance of culture.
The methodology used in the first part (Chapter 2: Multilateral Frameworks for Cultural Heritage Protection) of this thesis will be a contractual analysis. It will look at the contractual bases and frameworks available for cultural heritage protection and their assertiveness. The thesis will
7 UNESCO Constitution (adopted 16 November 1945, entered into force 4 November 1946) 4 UNTS 275.
8 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
9 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTC 171.
10 UNESCO Convention on the Safeguarding of Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1.
11 UNESCO Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 41 ILM 37.
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outline the different multilateral treaties that correspond to specific areas of cultural heritage protection. They relate to the preservation of tangible and intangible cultural heritage, culture in armed conflict, illicit trade in stolen art, and underwater cultural heritage.
The second part of this thesis (Chapter 3: The Sandwich Problem) will look at the changes that need to be made, considering the legal situation and the question of implementation. A lege ferenda approach will be applied, looking at the obstacles, and at the frameworks to ascertain what is not yet optimal and what could be enhanced, what is to be respected to make better contracts in the future, or to facilitate adherence to already existing frameworks. The thesis will look at the fragmentation of cultural heritage law and examine ways on how to reconcile this issue. Further, it will explore what role experts play in the narrative of cultural heritage, and how cultural heritage protection can harm the very objects the frameworks are trying to protect.
It is important to note that what will be looked at is cultural heritage and the protection of it, and not be concerned with intangible assets or intellectual property rights. It will not look at TRIPS and WTO agreements, nor at investment agreements exceptions. Those are of no concern to this thesis as what will be evaluated are how tangible and intangible cultural heritage is protected by international law and whether it is effective. Hence, an analysis of the different legal frameworks available, and certain disadvantages that could be associated with a strong protection framework will be looked at. The question is to what extend are cultural goods already protected under international law, how far do we still need to go, and what disadvantages to protection could there be in light of a comprehensive protection framework.
What will be seen is that the protection for cultural heritage is not nearly enough. The reason why will be outlined in the coming chapters. Finally, the evaluation of why the reasons are not enough in safeguarding cultural heritage will shed light on the issue.
2. Multilateral Frameworks for Cultural Heritage Protection
2.2. The Preservation of Historic and World Heritage SitesWhen looking at the preservation of Historic and World Heritage Sites one needs to first distinguish between the difference in movable and immovable objects. The immovables are
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governed by i) the 1954 Hague Convention 13 and ii) the ICRC Customary International
Humanitarian Law Rules in times of war;14 and in times of peace by the 1972 UNESCO World
Heritage Convention.15 The difference here is made because the UNESCO World Heritage
Convention deals with the deterioration and mismanagement of cultural sites, whereas the 1954 Hague Convention deals with the intentional destruction and usage of cultural sites for belligerent purposes.16
2.2.1. Immovable Cultural Heritage
There is a waiver provided for in customary law which is called ‘military necessity’. It allows for the attack of a cultural site if it has become a military objective. The customary law aspect is helpful in the sense that it binds states to the obligation even if they are not signatories to the 1954 Hague Convention.17 To this end, the 1999 Second Protocol to the Hague Convention provides
that this may only be invoked if there is no feasible alternative.18 If a state is under foreign
occupation after a time of war, the necessity to keep cultural sites from pillage and looting, as well as destruction not only befalls the nation state, but also the occupying state. This, however, can cause tension between the two camps, after all, the occupier probably does not care about that nations cultural heritage. In this case, the 1954 Hague Convention again provides for rules that prescribe that the occupying power is under an obligation to help the local authorities to rebuild and ‘safeguard and preserve’ their cultural property.19 A prime example is Iraq, where the
UNESCO World Heritage Committee presented a new initiative to help rebuild and revive Mosul
13 Hague Convention for the protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 240.
14 Jean-Marie Henckaerts, Louise Doswald-Beck, Customary International Humanitarian Law Volume 1 Rules (International Committee of the Red Cross, Cambridge University Press, 2009) p. 127-138, art. 38-41.
15 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151.
16 Alexander Herman, ‘Cultural Heritage Protection and the International-Municipal Interplay: International Legal Rules and their Relation with Domestic Law’ (2019) Fordham Workshop Paper Presented at the ASIL/QSIL/Urban Law Center Workshop: The Protection of Cultural Heritage and Municipal Law, 5 April 2019, Fordham Law, New York City.
17 Ibid.
18 1999 Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004) 2253 UNTS 172, art. 6.
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‘particularly through culture and education’ after the many years of war.20 It underlines the
necessity of international cooperation for the preservation of a culture, even if it is not one’s own. In times of peace, the World Heritage Convention regulates the protection of immovable cultural heritage. The definition includes monuments and sites which have an ‘outstanding universal value’. The convention has currently 193 signatories.21 The wide acceptance of the
convention can be attributed to the fact that with having a World Heritage Site in the territory comes not only funding from the World Heritage Fund, but also a sense of prestige.22 States
commit, therefore, under this convention to uphold the standard of care for the sites and protect and preserve them for future generations.23
2.2.2. Movable Cultural Heritage
The movable cultural objects fall under the auspices of i) the 1970 UNESCO Convention, ii) the 1995 UNIDROIT Convention, and iii) the 1954 First and the 1999 Second Protocol to the 1954 Hague Convention. The difference here to immovable cultural heritage is that the focus of the conventions is not so much on the intrinsic value of the objects, but rather concentrates on export restrictions. Further, a mechanism is provided for the return and restitution thereof. It is a very state-centric approach to cultural heritage, as the restitution does not necessarily mean that it will be treated better in its ‘original’ country, but solely that it belongs to that particular territory and that the object can only leave the territory with the express permission from the State who ‘owns’ it. 24 The main interest in this is to maintain the link between the object and the culture or state that
it belongs to.
The 1970 UNESCO Convention envisages the protection of the objects, the return of cultural objects to its ‘rightful’ owners, and the cooperation between states to facilitate the outcomes envisaged. The convention foresees that states must have a suitable police force to be able to register and oversee the cultural property within the states territory.25 This also includes an export
20 UNESCO Centre, 'Reconstruction And Recovery In Iraq: Reviving The Spirit Of Mosul' (Whc.unesco.org, 2018) <http://whc.unesco.org/en/news/1847/> accessed 4 June 2019.
21 UNESCO Centre, 'States Parties - UNESCO World Heritage Centre' (Whc.unesco.org, 2017) <https://whc.unesco.org/en/statesparties/> accessed 10 June 2019.
22 See (n16).
23 1972 UNESCO WHC, art. 4. 24 See (n16).
25 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transport of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 832 UNTS 231, art. 5, 6, 8, 10, 14.
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control system; mostly used is a system of licenses for the export of cultural goods.26 Further, it
imposes obligations on states to prevent the illicit import and acquisition of looted or stolen cultural property as well as the prompt return of the objects in question.27
What is, however, a problem to this system is that both the origin and the importing state must have already signed, ratified and implemented the convention at the time when the object was illicitly exported or imported.28 Everything before that, or if a party concerned was not party to the
treaty, falls outside of the scope of the convention. What is even more restrictive in that sense, is that only cultural objects which were stolen from a ‘museum, or a religious, or secular public monument, or similar institution’ which is inscribed on the respective states lists is considered within the scope of art. 7(b).29 This means that stolen articles from, for example, private collections
or illegally excavated objects from archaeological sites do not fall under the protection of this provision.30 Further, if restitution does become a valid option the state is under an obligation to
pay full compensation to the current possessor, even if they are not in good faith.31
The 1995 UNIDROIT Convention focuses much more on the restitution of stolen objects and fixes some issues that were part of 1970 Convention. As the latter is broader in scope of specification, many states signed the 1970 Convention and not the 1995 Convention. The 1995 Convention provides that not only states can request a stolen item back, but so can individual owners, expanding the scope from the 1970 Convention. Further, the state may also explicitly request illegally exported items to be returned, whether stolen or not.32 This includes objects from
private collections and archaeological sites which thereby excludes the 1970 Convention’s necessity of having to have the item in question to be inscribed on an official list of a museum or collection. It extends the scope of the 1970 Convention and, if a state has signed both conventions, they act supplementary to each other.
Since the 1995 Convention is rather specific in comparison to the 1970 Convention, it is no wonder that less states are signatories to the 1995 Convention than to the 1970 Convention. This is because the 1970 Convention does not impose as many obligations on the state as the 1995 Convention does. Especially for origin states, the 1995 Convention is prodigious because it acts
26 1970 UNESCO, art 6 & 8. 27 1970 UNESCO, art. 7. 28 See (n16). 29 1970 UNESCO, art. 7(b). 30 See (n16). 31 Ibid, footnote 26. 32 Ibid.
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as a means to restitution of looted, illegally exported art whereas states of destination naturally will find this somewhat burdensome. Most major art markets (USA, UK, Germany, Switzerland, France etc.)33 have therefore not ratified the 1995 Convention; France and Switzerland have signed
but not ratified the convention whereas none other major art market has signed the 1995 Convention, except for China. Yet, this has led to an increase in ratifications for the 1970 Convention, as it is now seen as the lesser ‘evil’.34 However, to provide for a more egalitarian
direction, the need for destination states to ratify the conventions is necessary. If they do not participate and continue to put a blind eye to where objects come from, then it will be hard for origin countries to ever get their rightful cultural objects back and to restore their home culture to its former/new glory.
Despite all this, the ‘soft law’ impact the 1970 Convention and the 1995 UNIDROIT Convention has is broad. Due to the wide acceptance, it has by virtue of its soft law status entered many Museum Ethics Guides as well as significant art fora’s ethics guides.35 This includes the
prohibition of acquiring looted or stolen art, as well as a more intense form of provenance research for future acquisitions.36 This already means that no museum in Europe will buy art that does not
conform to those ‘in-house’ rules and therefore cuts out a large portion of one of the major art markets in the world. Hence, even though soft law does not necessarily directly impact the curbing of trade in looted art, it impacts the institutions that deal with art, and which align their code of conduct with the above-outlined conventions. If major art market countries were now to align themselves with the more rigid requirements in the 1995 UNIDROIT Convention, a step forward would be made towards the acknowledgement of much looted and stolen art within the major art markets.
33 'Global Art Market In H1 2018 By Artprice.Com' (Artprice.com) <https://www.artprice.com/artprice-reports/global-art-market-in-h1-2018-by-artprice-com/h1-2018-global-art-market-report-by-artprice-com> accessed 4 June 2019.
34 See (n16).
35 For an example see the International Council of Museum Code of Ethics at <https://icom.museum/wp-content/uploads/2018/07/ICOM-code-En-web.pdf>; and Art Basel’s Art Market Principles and Best Practices at <https://d2u3kfwd92fzu7.cloudfront.net/AB_Art_Market_Principles_and_Best_Practices.pdf>.
36 International Council of Museum Code of Ethics art. 2.3, 2.11, 2.20, 3.4, 4.5; Art Basel’s Art Market Principles and Best Practices Section 2.
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2.3. Safeguarding Intangible Cultural Heritage
This chapter will focus on the mechanism envisaged for the safeguarding of intangible cultural heritage and, briefly, its impact on minority cultures. Intangible cultural heritage is that which cannot be tangible, movable or immovable. Intangible cultural heritage includes, among others, languages, dance, music, customs, and traditions. Whereas the protection of physical heritage has been acknowledged and protected for more than a century, the protection of intangible heritage has only recently received recognition as a good worthy of protection. It is defined in the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (ICH Convention) in art.2(1) as:
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 requirements of mutual respect among communities, groups and individuals, and of sustainable development.37
Earlier treaties have been associated with intangible cultural heritage protection. For example, articles 27 and 19 of the 1976 ICCPR both recognize the rights of minorities to exhibit and outlive their own culture, and practice their religion without the majority or the state imposing restrictions or bans.38 Article 19 reiterates that the necessity and fundamental human right to hold
opinions without interference shall not be impaired unless it is necessary for ordre public.
The 1976 ICESCR further specifies the rights of everyone to take part in cultural life and to enjoy both the benefits or progress, and the protection of moral and material intangible goods for the enjoyment of all. It clarifies the positive obligations of states to take the necessary steps for
37 ICH Convention, art. 2(1). 38 ICCPR, art. 19, 27.
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the realization of these rights, and a negative obligation to refrain from limiting the freedom of expression and enjoyment of these rights.39
The 1949 UDHR in art. 27 already stated the right to participate in the cultural life of the community freely. Since the UDHR is widely accepted to represent customary law standards on human rights, it is not a surprise that the same wording can be found in later binding treaties like the ICCPR and ICESCR. What is interesting to note is that according to the consensus in the literature, the ICH Convention envisages the state and local communities’ cooperation, however, there is very little actual cooperation.40 Nevertheless, it is a first step toward cooperation and
moves away from a state-centric approach to cultural heritage protection and towards more of a bottom-up approach, including the affected people in the decision making process.
Further, the ICH Convention also uses the mechanism of lists, just like the WHC. The question arises as to whether only those intangible goods are protected that are found on designated lists, or if it also extends to those that are not inscribed. It is arguably a lot harder to quantify the intangible heritage than it is the tangible.41 One advantage of the ICH Convention is that only those
intangible heritage goods are protected that are in line with accepted human rights standards. This means that any form of ICH which involves, for example, female genital mutilation, poaching or other forms of torture or force cannot per definition be considered a cultural good or practice worthy of protection.42 This qualification is a step forward for the protection of human rights and
the furtherance of equality not only between man and woman, but between different cultures as well. The ICH Convention has been ratified expediently by 178 states which underlines its importance and the opinio juris of most states that ICH is worth protecting.43 That being said, the
ICH Convention is still an international treaty and thereby only binds states. This leads to the sovereign having the upper hand and the final word in the conclusion of decision making, which could lead to the demise of a peoples culture if the people are not included in the decision making process.44
39 ICESCR, art. 15.
40 Lukas Lixinski, Intangible Cultural Heritage in Andreas Joh. Wiesand, Kalliopi Chainoglou, Anna Śledzińska-Simon in collaboration with Yvonne Donders (eds), Culture and Human Rights: The Wroclaw Commentaries (DeGruyter 2016).
41 Ibid. 42 Ibid.
43 'UNESCO Atlas Of The World's Languages In Danger' (Unesco.org, 2019) <http://www.unesco.org/languages-atlas/> accessed 4 June 2019.
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2.3.1. ICH and Indigenous Rights
The rights of indigenous peoples plays an important part in reference to intangible cultural heritage protection. The UN Declaration on the Rights of Indigenous Peoples45 envisages the
importance of repatriation for cultural loss as one of its central points.46 The colonial destruction
and assimilation of peoples have contributed to the fact that various tribes and cultures have vanished over the centuries, which now need to be protected and aided in their renaissance.47
Traditionally, indigenous peoples were seen as competitors to the colonial rule and were therefore denied access to their territories and resources.48 Later, the appalling practice of removing
indigenous children from their families to raise them in line with the colonialists’ culture, aided in their destruction and to obliterate the memory of the native heritage. This was particularly prominent in Canada, where under the so-called “Sixties Scoop” native born children were taken away from their parents and set up for adoption or fostering.49 Native culture was seen as
‘backwards’ and a hindrance to the development of the state, and even though they are accepted today, many indigenous peoples still argue that the colonial occupation and the oppression of their culture is maintained to this day.50
Another example for the necessity to protect intangible cultural heritage is the prohibition of speaking ones native tongue in order to assimilate a people to the majority. This was the case in Francoist Spain, under whose policies the Catalan, Basque, and Galician languages were only allowed to be spoken in private spaces.51 Today, the French Constitution still only recognizes
French as the official language,52 and a vote on the recognition of the signed but not ratified
European Charter for Regional and Minority Language failed.53 This is problematic as most
minority languages in France, such as Breton, are enlisted as endangered under UNESCO.54 But
45 UN Declaration on the Rights of Indigenous Peoples (adopted 13 December 2007) A/61/295.
46 Ana F. Vrdoljak, Reparations for Cultural Loss in Federico Lenzerini Reparations for Indigenous Peoples:
International and Comparative Perspectives (Oxford University Press 2008).
47 Ibid. 48 Ibid.
49 Jessica Murphy, 'Indigenous Canadians Taken From Homes As Children Get Day In Court' (the Guardian, 2016) <https://www.theguardian.com/world/2016/aug/22/indigenous-canadians-children-sixties-scoop-court> accessed 4 June 2019.
50 See (n46).
51 Raymond Carr, Spain: A History (Oxford University Press 2000) p. 266. 52 The Constitution of France 1958, Art. 2.
53 'French Senate Buries Ratification Of European Charter For Regional And Minority Languages' (Nationalia, 2015) <https://www.nationalia.info/new/10635/french-senate-buries-ratification-of-european-charter-for-regional-and-minority-languages> accessed 4 June 2019.
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without the recognition of the French Republic, there is little help local communities can expect from the state in aiding or advancing the survival of the languages.55
All in all, the recognition of intangible cultural heritage as well as the efforts of protecting them on an international level are to be commended. The positive implications the recognition of intangible cultural heritage has not only on the majority, but especially on indigenous cultures is immense. However, the road to actual recognition and safeguarding at a domestic level is still a long way away. This can be seen especially when local courts are confronted with indigenous claims for reparations.56 It is also evidenced in the constitutional make up of France’s constant
negation of minority languages in its territory. It is therefore vital to continue the expression of intangible cultural heritage and to safeguard it for the benefit of humankind.
2.4. The Protection of Cultural Property in Armed Conflict and Looted Antiquities
“Where there is cultural destruction, there may be genocide.” – John Hocking57
The destruction of cultural property during armed conflict is not a novelty. The title of this chapter raises the question of how property protection could be related to the more general protection of culture per se. The reason is, for something to be protected under the relevant treaties it has to be considered an object capable of physical destruction. For example the shelling of Dubrovnik, the destruction of the Bamiyan Buddhas, the dispute between Cambodia and Thailand over the Temple of Preah Vihear, the destruction of mausoleums in Timbuktu in Mali, and most recently ISIS’ destructive rampage through Syria all have in common that something physically valuable was destroyed.
The relevant treaties that cover cultural heritage and property protection in armed conflict are most notably i) the 1954 Hague Convention for the Protection of Cultural Property in the Event
55 See (n53). 56 See (n46).
57 'ICTY Paved Way For Accountability For Attacks On Cultural Heritage | International Criminal Tribunal For The Former Yugoslavia' (Icty.org, 2016) <http://www.icty.org/en/press/icty-paved-way-for-accountability-for-attacks-on-cultural-heritage> accessed 10 June 2019.
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of Armed Conflict58 and its 1954 First Protocol59 and its 1999 Second Protocol,60 ii) the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import-Export and Transfer of Ownership of Cultural Property,61 iii) the 1972 World Heritage Convention,62 and iv) the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.63
It is seen time and again, that the deliberate targeting and destruction of cultural objects and sites fuels the direct purpose of ‘cleansing’ and ‘extend[s] the brutality of ethnic cleansing to cultural persecution and cultural extinction’.64 That is to say, they are not mere side effects of
ongoing quarrels. This was especially the case in Yugoslavia with the destruction of the Mostar Bridge and the Dubrovnik shelling, the destruction of art in Afghanistan by the Taliban, as well as the atrocities performed in both Timbuktu and Syria.65
Since culture is seen as one of the key components to a nations identity, it is therefore perceived as an intrinsic part of its sovereignty over a defined territory and a people. This is primarily represented in the protection of a national language, cultural objects and individual monuments and sites related to said people.66 The World Heritage Convention protects both natural and cultural heritage sites, and requires states to make lists of the important sites, which may or may not be inscribed on the Cultural Heritage Lists.67 They are important to be aware of because they are frequently the territory of violence as in the examples given above. For instance, when the invasion of Iraq in 2003 resulted in the looting and pillaging of the National Museum, it culminated in international outcry and a Security Council resolution was passed to prohibit the transfer or sale of looted objects and to facilitate the return to the Museum.68 The local population
58 See (n13).
59 First Protocol for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered
into force 7 August 1956) 249 UNTS 358.
60 See (n18). 61 See (n25). 62 See (n15).
63 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995, entered into force
1 July 1998) 34 ILM 1322.
64 Francesco Francioni, Culture, Human Rights and International Law in Valentina Vadi, Bruno de Witte, Culture
and International Economic Law (Routledge 2015).
65 Ibid.
66 Ana F. Vrdoljak, Human Rights and Cultural Heritage in International Law in Federico Lenzerini, Ana Filipa
Vrdoljak, International law for common goods : normative perspectives on human rights, culture and nature (Hart Publishing 2014).
67 Ibid.
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was devastated because they lost what was considered to be “the soul of Iraq”.69 But more and more, the return of the looted objects to the National Museum seemed to restore a sense of sovereignty.70
2.4.1. The 1970 UNESCO & the 1995 UNIDROIT Conventions
The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import Export and Transfer of Ownership of Cultural Property is a state-centric convention especially used to curb black market sales of cultural objects and illegal transfer from war zones to major art markets. It further affirms that the state defines what is to be considered cultural material, identical to the World Heritage List.71 One can here see the connection and the modus
operandi of the UNESCO. Only the removal of an object triggers the convention and its protection
mechanisms. However, as stated before, this convention is state-centric and does not recognize the rights of ‘individuals’ as such, whereas the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects does. The 1995 Convention gives more rights to non-state actors, as well as individuals in both recognizing and accessing a particular cultural good, but it nonetheless remains very state focused.72
What is also important to note is that the 1995 UNIDROIT and the 1970 UNESCO Conventions only apply when objects cross national borders. There is a difference made between objects taken from sites such as museums and collections, and those removed from archaeological sites. Here, the objects from museums will be regarded as ‘stolen’ cultural objects and will require restitution; whereas objects from archaeological sites are considered ‘illegally exported cultural property’ which is to be returned.73 The legalese differentiation fundamentally discerns between
private individuals claims, which can only claim for a ‘stolen’ cultural object to be restituted, whereas states may also claim ‘illegally exported cultural property’ to be returned, thereby highlighting the state-centric drafting of the conventions.
69 Michael D Lemonick, “Baghdad’s Treasure: Lost to the Ages” (Time Magazine Online, 28 April 2003)
<http://content.time.com/time/magazine/article/0,9171,1004726,00.html> accessed 23 June 2019.
70 See (n66). 71 Ibid. 72 Ibid.
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2.4.2. The 1954 Hague Convention and its Protocols
There has been significant proof that ISIS has been financing its terrorist activities by, first, sending in highly qualified experts in cultural objects to elect the most important and valuable ones, before filming the destruction of the cultural site for the world to see.74 In this context the
1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is an important document to look at as it represents the widely recognized notion of international customary law.75 ISIS has more or less used the convention and strict rules to its advantage by
destroying artefacts. “Irina Bokova, the director general of UNESCO, the UN cultural agency, said she was deeply shocked at the footage showing the destruction and has asked the president of the UN Security Council to convene an emergency meeting “on the protection of Iraq’s cultural heritage as an integral element for the country’s security”.”76
The 1954 Convention is largely recognized as having had “little or no success as an enforceable body of law”.77 This is because it does not explicitly establish criminal jurisdiction,
and it lacks in precision. Hence, the convention relies heavily on national laws and the enforcement thereof, as well as ad hoc tribunals.78 Even so, the 1999 Second Protocol introduced a very detailed
regime of individual criminal responsibility for both NIAC and IAC, which supplement and fortify the more general provisions of the 1954 Convention.79 Those provisions reiterate what constitutes
severe violations of the protocol, how to invoke jurisdiction either because of the territorial or personality link, responsibilities to prosecute and the possibility to extradite responsible individuals, as well as strengthen the mutual legal assistance between the member states.80
Also relevant is the evolution of cases that have not only underlined the importance but also elaborated and fortified the significance of cultural heritage as not only a human right but as essential to the explicit existence of a people. In Kordic-Cerkez81, the ICTY established that the
intentional destruction of cultural property is an independent count of criminal liability and
74 David W. Bowker, Laura Goddall, Rebecca A. Haciski, “Confronting ISIS’s War on Cultural Property” (2016) ASIL Vol. 20:12.
75 Ibid.
76 Kareem Shaheen, “Isis fighters destroy ancient artefacts at Mosul museum” (The Guardian, 26 February 2015) <https://www.theguardian.com/world/2015/feb/26/isis-fighters-destroy-ancient-artefacts-mosul-museum-iraq> accessed 23 May 2019.
77 See (n74). 78 Ibid.
79 1954 Hague Convention, art.15-20. 80 1999 Second Protocol, art. 15-20.
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additionally, if the act is carried out with discriminatory intent it elevates to a crime of persecution. Furthermore, the Tribunal held in Prosecutor v Krstic82 that if the systematic destruction can be
proved to have specific mens rea, it can be evidenced to constitute a crime of genocide.83
2.5. The Protection of Underwater Cultural Heritage
The notion of underwater cultural heritage is a rather new concept. Until a couple of years ago, no one considered such a thing as underwater cultural heritage, nor that it was in need of protection. The fact that there were ships and cultural treasures under the sea, meant merely that it was accessible to a “finders-keepers” mentality, and open to commercial trade.84 However, this has
changed with the imposition of two essential documents regarding the sea. One is the infamous 1982 UN Convention on the Law of the Sea (UNCLOS) and the second more recent one is the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (CPUCH).
2.5.1. The UN Convention on the Law of the Sea
The invocations of the two critical articles, Article 149 and Article 303 UNCLOS are sometimes said to be in direct opposition with each other.85 Article 149 states that:
Article 149 Archaeological and historical objects
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.86
It illustrates that states which have a territorial link to the cultural object have preferential access to it, and that public interest of preservation and or disposition for the benefit of humankind
82 Prosecutor v Krstic Case (Judgement) IT-98-33-T, T Ch (2 August 2001). 83 See (n64).
84 Tullio Scovazzi, Underwater Cultural Heritage as an International Common Good in Federico Lenzerini, Ana Filipa Vrdoljak, International law for common goods : normative perspectives on human rights, culture and nature (Hart Publishing 2014).
85 Tullio Scovazzi, Underwater Cultural Heritage in Andreas Joh. Wiesand, Kalliopi Chainoglou, Anna Śledzińska-Simon in collaboration with Yvonne Donders (eds), Culture and Human Rights: The Wroclaw Commentaries (DeGruyter 2016).
86 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994)1833 UNTS 397, art. 149.
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takes priority in reference to private interests. The area here is meant to be a part of the ‘sea bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’.87 This provision is
lex specialis, whereas the scope of application of art. 303 is very broad. Even so, art. 303 is said by specialists to contain a regiment that allows for the looting of underwater cultural heritage objects, rather than the protection thereof.88 This is further fortified by the fact that the notion of
protection of underwater cultural heritage was only brought into the drafting of the UNCLOS a mere 10 years before the completion of the convention.89 To most people that sounds like a long
time. However, for such a comprehensive treaty and treaty discussion procedure, the fact that underwater culture was so to say ‘left to the last minute’ is unacceptable within the cultural heritage discourse.90 As experts remark, the fact that one provision acknowledges underwater heritage as
cultural goods, and the other one namely, art. 303 does not, means that they are in direct opposition to each other. This causes not only tension but also different interpretations and fragmentation of the international legal framework of UNCLOS.
Article 303 states that:
Article 303 Archaeological and historical objects found at sea
1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose.
2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed 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.
3. 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.
4. 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.91
This article is essential, as it derives international responsibility if a state were to intentionally destroy or omit to keep the objects in question safe. The Articles on State
87 UNCLOS, art.1(1). 88 See (n85). 89 See (n84). 90 See (n85). 91 UNCLOS, art. 303.
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Responsibility92 would refer to this as an internationally wrongful act attributed to the state in
which the area lies.93 This is inferred from the first paragraph of the article. The second paragraph
allows the state with the territorial link to extend its sovereignty over the outer limit of the territorial sea, which is 12 nautical miles and at most 24 nautical miles.94 This is linked to art.33
UNCLOS in which the coastal state may prevent the infringement of its customs or national rules in the part of the so called ‘Contiguous Zone’.95 However, since that only goes in conjunction with
specific crimes like smuggling, public health and immigration, it does not explicitly leave room for cultural objects specifically. Hence, the stealing, looting, etc. of cultural objects is not per se protected in its own right. However, via the route of protecting its own nationals from disease of infectious patients, smuggling and clandestine immigration, can the state indirectly invoke domestic regulation to protect underwater cultural heritage.96 This is very unspecific and extremely
burdensome on the coastal state.97
Article 303 relays the underwater cultural objects to the ‘laws of salvage and other admiralties’, which means that if there were a conflict between the protection of underwater culture and the laws of salvage, the latter would mostly prevail.98 This was underlined in case law of
common law countries. For example in RMS Titanic, Inc v Haver,99 the tribunal states that the
specific sphere of salvage to underwater cultural heritage is a ‘venerable law of the sea’, and that it developed through the custom of ‘seafaring men’.100 However, this simply means that the ‘first
come first serve’ approach of the law of salvage aids to private interests of commercial gain and not the protection of underwater cultural heritage.101 The good part about this is that art. 149
UNCLOS is not subject to the ‘venerable law of salvage’.
92 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) 53rd Session International Law Commission (ARSIWA).
93 See (n84).
94 UNCLOS, art.3, 10 & 33. 95 UNCLOS, art. 33. 96 See (n84). 97 Ibid. 98 See (n85). 99 See (n84), p. 222. 100 Ibid., p. 223. 101 Ibid.
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2.5.2. The Convention on the Protection of Underwater Cultural Heritage
The CPUCH is a significant step forward in the protection of underwater cultural heritage and builds directly upon art. 149 UNCLOS. The CPUCH defines underwater cultural heritage as ‘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’.102
The CPUCH has 60 ratifications as of June 2018, which attests to its growing importance within the field of protecting underwater cultural heritage. It is also an attester to the minimal efforts and outright adversaries the convention has. In reference to UNCLOS, which has 168 ratifications, 60 ratifications are only a drop in the ocean. However, what UNCLOS lacks in enforcement mechanism, the CPUCH makes up in actual usable tools for the protection of underwater cultural heritage. The main defensive tools which are available under CPUCH are the elimination of the law of salvage and finds, the exclusion of the first-come-first-serve approach, and the strengthening of regional cooperation.103 Article 4 CPUCH specifically names and
excludes the law of salvage unless it is authorized by the competent authorities, strengthening regional cooperation and the territorial link, and it is in full conformity with the rest of the CPUCH, and that the extraction of the underwater cultural heritage receives full protection.104 The CPUCH
also makes it a point in art. 2(7) that underwater cultural heritage is at no point to be exploited for commercial gains, which again is in direct contrast to art. 303 UNCLOS.
It further provides for a mechanism that involves all parties to the heritage good in question. It envisages a three step procedure: reporting, consultation, and urgent measures. The first step of reporting bans the practice of secret activities or discoveries.105 Article 9 sets out that vessels must
fly under their respective home states flags, and if any objects are located in the contiguous zone, or the continental shelf then they have to either 1. report it to the other state party or 2. report it to the respective home state who is under the obligation to convey the message to the legitimate authorities in the other state party.106
The second step provides for consultation procedures between the coastal state and all other state parties involved.107 The CPUCH states that a verifiable link has to be established between the
102 CPUCH, art. 1. 103 See (n84), p. 224. 104 CPUCH, art. 4. 105 See (n84), p. 225. 106 CPUCH, art. 9.
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state and the underwater cultural heritage in question.108 If the coastal state does not want to
coordinate the measures, then a third state, a coordinating state, is appointed to intervene and implement the measures for protection of the underwater cultural heritage in question. The third step, urgent measures, envisages that the coordinating state may “take all practicable measures …. to prevent any immediate danger to the underwater cultural heritage”.109
Even though the CPUCH encourages States to enter into bilateral or multilateral agreements110 it still states that it is to be read in accordance with UNCLOS in article 3:
Article 3– Relationship between this Convention and the United Nations Convention on the Law of the Sea Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under inter- national law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea.
Therefore, this again shows that the CPUCH even though it implies the lex specialis, can be outweighed by art. 303 UNCLOS if a State party should decide to invoke it. This evidences a specific hierarchy in the international law on underwater cultural heritage.
2.6. Interim Conclusion
As we have seen, the different tangible and intangible cultural heritage realms correspond to a multitude of frameworks which aim to protect the objects and issues at hand. However, it also illustrates how fragmented the different frameworks are. There are multiple frameworks for essentially the same issues, which lead to confusion, misunderstandings and most importantly multiple interpretations. This is evident most notably in the jus in bello on cultural heritage. Here, multiple frameworks could apply to similar situations, but only the less rigorous ones prevail in the end, i.e. the 1954 Hague Convention and the 1970 UNESCO Convention. Of course, it is the prerogative of the sovereigns to undersign frameworks they want to adhere to. However, this multitude of treaties hinders the effort of streamlining cultural heritage protection for more stringent and intrusive frameworks, for example the CPUCH and the 1995 UNIDROIT
108 See (n84), p. 226. 109 CPUCH, art. 10(4). 110 CPUCH, art. 6.
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Convention. The political will to come to a comprehensive conclusion of frameworks which are both efficient, effective and strong, is a constant struggle. For instance, as was seen in both the difficulty in including cultural rights in the UNCLOS, as well as the non-acceptance of any other language than French in France, thereby endangering the many indigenous languages that are spoken in France by not signing the European Charter for Regional and Minority Language, are only two examples to be made. The legalese analysis of the texts show that, were treaties to be implemented, signed, and followed to the letter, then the protection efforts of most cultural heritage would be more effective and prosperous. However, the political will, as well as what is vital for different sovereigns remains more important. The next section will delve deeper into this political aspect of cultural heritage protection.
3. The Sandwich Problem
3.1. Fragmentation in Cultural Heritage Law
It is an old truth that only winners write history books. Moreover, is it true that only the powerful states decide what is to be important in legislative processes and what is not. This is explicit in the Security Council of the UN, in which the winners of World War II sit, deciding on the trajectory of the worlds policies and politics. It was a strategic move on the part of the western powers to take hold of key regulatory institutions, specifically economic ones, from the influence of weaker states and newer members to the UN.111 A theory put forward by Paul Kennedy is that
the western states intentionally employed fragmentation from the outset to keep the Economic and Social Council (ECOSOC) from competing with the Security Council (SC), in order to avoid a ‘clash of powers’.112 They did not implement the UN Charters’ requirements of “bringing into
relationship”113 all the specialized agencies like the IMF, ILO and most importantly UNESCO
with the UN under the auspices of ECOSOC.114 It thereby confirms, that the governments of the
111 Eyal Benvenisti, George W. Downs, ’The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’ (2007) 60 Stanford Law Review 595, p. 598.
112 Paul Kennedy, The Parliament of Man (Vintage 2006), p.113-142.
113 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945), art. 57 & 63. 114 See (n111), p. 598.
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respective powers do neither consider ECOSOC as a principal organ nor as a full equivalent of the SC.115
The international law on cultural heritage protection outlines the problems that fragmentation has caused in aggravating its efficiency, both for the protection and the maintenance of cultural heritage. Benvenisti and Downs use a four step fragmentation strategy which they claim is employed by powerful states to inhibit the evolution of, in this case, cultural heritage law. 1) They (the powerful states) avoid large multilateral integrative treaties and exchange them for a multitude of narrowly defined agreements which are limited in scope; 2) they formulate the agreements as a ‘one-off’, or during negotiations which are held just once and are onerous to attend or participate in for weaker states; 3) they avoid the creation and adherence to bureaucracy or judiciary which could significantly change the trajectory of policy making or impose obligations on them, and 4) creating and resorting to alternative settlement procedures when the original venue has become overly in favor of the weaker party.116 The four steps are strategies to increase
transaction costs for weaker states in order to further frustrate their agenda against the more powerful states.
3.1.1. Avoidance of Large Multilateral Treaties
Large multilateral integrative treaties are avoided to make way for smaller, less intrusive texts. This is especially the case with the 1995 UNDROIT Convention, which is authoritative but has very little ratifications. Instead, after long debates, powerful western states decided to sign the less intrusive and more suggestive rather than obligatory 1970 UNESCO Convention as a ‘lesser evil’, for example the UK and US.117 The US above all is party to only a handful of treaties that
we have discussed so far, 118 and it just recently rescinded its membership to UNESCO, claiming
its “Israel bias”. 119 The US even goes so far as to call entrances of the World Heritage List in
‘disputed’ areas of Israel as anti-Semitic,120 asserting their power over the discourse.
115 See (n112), p.114-115. 116 See (n111), p. 599. 117 See (n16). 118 See Table 1.
119 Gardiner Harris and Steven Erlanger, 'U.S. Will Withdraw From Unesco, Citing Its ‘Anti-Israel Bias’' (Nytimes.com, 2017) <https://www.nytimes.com/2017/10/12/us/politics/trump-unesco-withdrawal.html> accessed 8 June 2019.
120 Yonatan Mizrahi, 'Opinion: UNESCO's Recognition Of Palestinian Heritage Isn't Anti-Semitic' (haaretz.com, 2017) <https://www.haaretz.com/israel-news/.premium-unesco-isn-t-anti-semitic-1.5492960> accessed 8 June 2019.
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It is further evident that there is a multitude of treaties for essentially the same issues. The amount brings about confusion and difficulty in deciding who is responsible for what, and what effective implementation and coherence could look like. The method employed here is that of fragmentation, where one treaty lacks enforcement mechanisms, the other isn’t specific enough, and the next is only a declaration and has no legal value nor necessity of implementation for states. This is most evident in the implementation of the treaties that have been looked at so far. Table 1 below shows how the powerful states have chosen not to ratify most of the important treaties available for cultural heritage protection. Most importantly the USA has signed no international treaties in favor of cultural heritage protection. This is significant because it hinders effective enforcement of these treaties, when the most powerful state is a non-party. Further, powerful common law states, as the UK and US, still use the “law of salvage”.121 The significance of that is
that they undermine the UNCLOS and CPUCH provisions which try to actively eliminate this antiquated way of thinking and legislating about underwater cultural heritage.
3.1.2. Onerous Negotiation Proceedings
It can be argued that Macrons’ call to return all African or colonial art that was unlawfully taken and kept in France’s museums is a noble undertaking. The reality of the situation, however, shows that it is rather difficult of an undertaking, and even more so legally. The provenance research for the 70000 pieces of colonial art will take many years.122 Some pieces were gifts, but
under the colonial reign it seems difficult to regard anything as a gift. The report by Bénédict Savoy and Felwin Sarr123 states that art will be returned that was taken “after confirmation that a
freely consented to and documented transaction took place that was agreed upon and equitable”.124
Nonetheless, as is clearly established under the Nazi looted art restitution regime, that “consent” was most often coerced, or the only means for individuals to survive under the regime. Courts have in that line of argument also established that putting people in economically dire situation in what
121 See (n84).
122 Alexandra Goetz-Charlier, ‘ “Orphans of a Common Heritage”: A Panorama of the Procedural Innovations under French Law for the Restitution of African Cultural Heritage” (2019) Presented at the ASIL/QSIL/Urban Law Center Workshop: The Protection of Cultural Heritage and Municipal Law, 5 April 2019, Fordham Law, New York City.
123 Bénédicte Savoy and Felwine Sarr, 'The Restitution Of African Cultural Heritage. Toward A New Relational
Ethics' (Ministere De la Culture, France 2018), p. 62.
124 Vincent Noce, 'Give Africa Its Art Back', Macron's Report Says' (Theartnewspaper.com, 2018) <https://www.theartnewspaper.com/news/give-africa-its-art-back-macron-s-report-says> accessed 8 June 2019.
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was a prelude to a genocide is considered part of that genocide.125 There is evidently a double
standard applied here with difference in treatment for Nazi looted art, and the restitution of African art.126 It is therefore clearly more onerous for weaker states to claim restitution and expect a prompt
return, than it is for more powerful states, such as the US or Germany.
3.1.3. Avoidance of Effective Judiciary
The avoidance of authoritative bureaucratic mechanisms or judiciary is a tool the powerful states use to eliminate their duties in certain fields, and to keep the domain within its domestic capacity rather than adhering to internationally agreed standards.127 In the cultural heritage sphere,
UNESCO has indeed limited power in what it can achieve against powerful states. Neither do authoritative courts exist that specifically deal with cultural crimes as a crime in its own right. Although International Courts like the ICTY and ICJ have condemned and ruled cultural destruction a crime against humanity,128 it still lacks enforcement mechanisms that specifically
deal with culture in its own right. The CCPCJ, ECOSOC’s commission which acts as the principal policy making body for the UN in regards to crime prevention and criminal justice,129 suggested a
way to handle trafficked cultural items which aid in financing terrorism and other crimes, but specifically states that these are “non-binding guidelines” further reaffirming the lack of authority of such reports.130
It can further be shown that powerful states disregard authoritative bureaucracy and courts since only two of the five SC members have signed the Rome statute, which would allow for individual criminal responsibility and therefore prosecution in an international court.131 The US,
Russia and China are actively avoiding the probably only authoritative institution on an international level to date, to keep the power dynamic in their favor and to avoid giving jurisdiction
125 Isaac Kaplan, '3 Cases That Explain Why Restituting Nazi-Looted Art Is So Difficult' (Artsy, 2017) <https://www.artsy.net/article/artsy-editorial-3-cases-explain-restituting-nazi-looted-art-difficult> accessed 8 June 2019.
126 See (n122). 127 See (n111), p. 604.
128 'Dubrovnik And Crimes Against Cultural Heritage | International Criminal Tribunal For The Former Yugoslavia'
(Icty.org) <http://www.icty.org/en/outreach/documentaries/dubrovnik-and-crimes-against-cultural-heritage> accessed 10 June 2019.
129 'Economic And Social Council (ECOSOC) - United Nations And The Rule Of Law' (United Nations and the Rule
of Law) <https://www.un.org/ruleoflaw/economic-and-social-council-ecosoc/> accessed 8 June 2019.
130 Report on the Meeting of the expert group on protection against trafficking in cultural property (24 January 2014) UNODOC/CCPCJ/EG.1/2014/3, Annex 1 para. 4.
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to other nations over liability of their actions and inactions. This additionally reaffirms their control over the discourse and the necessity for the implementation of comprehensive frameworks.
a) International Cultural Heritage Court & ADR
There is, however, discussion on creating an International Cultural Heritage Court. However, as Alessandro Chechi points out there are a multitude of problems with that idea. One is that powerful states are already not joining international courts and are more prone to deal with issues in the national context rather than on an international level.132 Second, the costs it would
incur to initiate another international court are tremendous, and would again need the support of powerful states, which is unlikely. He points out that state sovereignty in general is the problem, since states can freely decide to which international courts they want to ascribe jurisdiction to, and which not. This is in line with the thought that the non-cultural concerns involved would not be accommodated sufficiently.133 It is the general lack of will that hinders the instigation of an
international court for cultural heritage. Especially market countries would not allow jurisdiction to the court as they would be the first to come under scrutiny for the questionable appropriation of cultural artefacts. Here for example, the Parthenon Marbles restitution claim of Greece would most probably be decided in favor of Greece by expert testimony, angering the UK.134 Therefore, this
idea remains a long shot.
Another option is adding ADR to the issue of cultural heritage law. This encompasses consultation, mediation, and adjudicative arbitration.135 Usually national judges do not have expert
knowledge on cultural objects and therefore lack authority in their decision making. An example given is that a painting may contain both a tangible and an intangible element, i.e. the painting itself and that which it depicts, respectively.136 This illustrates the specificity and expert knowledge
needed to ascertain a fair outcome of a claim. ADR would be especially useful in cases involving multiple jurisdictions as it would serve as a neutral venue. The parties here can chose their mediators, arbitrators and experts which add to the specification of the tribunal. In this case it is
132 Alessandro Chechi, 'Evaluating the Establishment of an International Cultural Heritage Court' (2013) 18 Art, Antiquity & Law 31.
133 Ibid. 134 Ibid.
135 Sarah Theurich, Alternative Dispute Resolution in Art and Cultural Heritage - Explored in the Context of the World
Intellectual Property Organization’s Work in Kerstin Odendahl, Peter Johannes Weber (eds) Kultugüterschutz – Kunstrecht – Kulturrecht (Nomos 2010).
